CLA-2 RR:TC:TE 959399 CAB
David J. Craven, Esq.
Riggle And Craven
205 West Wacker Drive
Suite 2022
Chicago, IL 60606-1215
RE: Classification of certain pantyhose and stockings; Surgical
Compression Stockings; Stockings for Varicose Veins
Dear Mr. Craven:
This is in response to your inquiry of May 6, 1996, requesting a
tariff classification ruling for pantyhose and stockings on behalf of
your client MediUSA, in accordance with the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). Samples were
submitted for examination.
FACTS:
Four representative samples were submitted. The articles at issue
are described as follows:
1. Sample one: 70 denier pantyhose comprised of 82 percent nylon/l
8 percent spandex; The spandex provides a compression of
approximately 12 mercury. The graduated compression ranges from
17.1 mm mercury at the ankle to 8 mm mercury at the thigh.
2. Sample two: 140 denier calf stocking comprised of 78 percent
nylon/l 2 percent spandex with a compression of approximately 17
mm mercury. The graduated compression ranges from 23 mm mercury
at the ankle to 14.6 mm mercury at the calf.
3. Sample three: 140 denier pantyhose comprised of 78 percent
nylon/12 percent spandex with a compression of approximately 17 mm
mercury. The graduated compression
ranges from 23mm at the ankle to 11
mm mercury at the thigh.
4. Sample four: 280 denier calf stocking comprised of 27 percent
nylon/66 percent cotton/
7 percent spandex with a compression of approximately 22mm
mercury. The graduated compression ranges from 28.4 mm mercury
at the ankle to 13.5mm mercury at the thigh.
You state that the subject stocking will be imported in a
variety of sizes and sold to patients through medical and supply
houses and similar outlets. You further state that the stockings can
be used by either gender and are primarily intended for women with
the exception of the 280 denier calf stockings which is primarily
intended for men. You note that these stockings differ from
prescription medical compression stockings only to the extent that
they are not produced in the highest compression ranges, are not
intended for sale by prescription only, and are more fashionable than
traditional medical compression stockings. In essence, you believe
that the subject goods are compression stockings. You state that the
stockings at issue are more than stockings merely for the treatment
of varicose veins and while these stockings can be used to treat
varicose veins, they are designed and intended to be used for any
application in which compression of a particular degree is needed.
ISSUE:
Whether the subject articles are classifiable in the subheadings
of Heading 6115, HTSUSA, for medical compression stockings, or in the
"other" subheadings of Heading 6115, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise that
cannot be classified in accordance with GRI 1 is to be classified in
accordance with subsequent GRI's taken in order.
There is no dispute that the subject articles are classifiable
under Heading 6115, HTSUSA, which provides for pantyhose, tights,
stockings, socks and other hosiery, including stockings for varicose
veins, and footwear without applied soles, knitted or crocheted. The
issue in this instance is determining the proper subheading for the
subject merchandise.
In order for Customs to make this determination we must look to
the tariff classification history concerning the subject articles.
Since 1988, stockings for varicose veins have been provided for under
Heading 6115, HTSUSA. Heading 9021, HTSUSA, in pertinent part, is
the provision for orthopedic appliances, including crutches, surgical
belts and trusses. In Headquarters Rulings Letter (HQ) 086146, dated
March 14, 1991, and HQ 088272, dated March 14, 1991, Customs was
faced with the issue of whether compression stockings were
classifiable as orthopedic appliances under Heading 9021, HTSUSA, or
as stockings for varicose veins under Heading 6115, HTSUSA. Customs
noted that prior to the inception of the HTSUSA, "the Customs Service
has recognized compression stockings such as those at issue as
similar to surgical belts and trusses and classified them under a
provision for orthopedic appliances, surgical belts, trusses, and
similar articles. See, T.D. 76-133(3)."
The Explanatory Notes to the Harmonize Commodity Description and
Coding System, although not legally binding, are the official
interpretation of the tariff at the international level. The EN to
Heading 9021, specifically exclude stockings for varicose veins from
Heading 9021, HTSUSA, and indicate such stockings are classified in
Chapter 61, HTSUSA. In HQs 086146 and 988272, Customs concluded that
"the compression stockings at issue are more than simply stockings
for the treatment of varicose veins. They are prescribed by
physicians for the treatment of venous diseases and other serious
conditions such as reversible and irreversible lymphedema and severe
post-thrombotic treatment." Customs stated that the stockings
therein met the definition of orthopedic appliances and classified
them under Heading 9021, HTSUSA. However, effective January 1, 1992,
Chapter 90, HTSUSA, was amended to state the following:
Notes
1. This chapter does not cover:
* * *
(b) Supporting belts or other support articles of textile
material, whose intended effect on the organ to be supported or
held derives solely from their elasticity (for example,
maternity belts, thoracic support, bandages, abdominal support
badges, supports for joints or muscles)
(Section XI);
The aforementioned note resulted in the transference of surgical
stockings and pantyhose with compression out of Heading 9021, HTSUSA,
to Heading 6115, HTSUSA. In essence, with the inception of Note
1(b), Chapter 90, HTSUSA, compression stockings would no longer be
considered orthopedic appliances of Heading 9021, HTSUSA. In 1993,
this move effectuated the creation of subheading 6115.93.15, HTSUSA,
which specifically provides for surgical compression stockings for
orthopedic purposes, other than stockings merely for the treatment of
varicose veins. The International Trade Commission (ITC) conducted
an investigation in response to an industry wide submission
concerning the proper wording of subheading 6115.93.15, HTSUSA,
specifically the tariff classification treatment of surgical
compression stockings of cotton and surgical compression pantyhose of
synthetic fibers and of cotton. As a result of the ITC
investigation, subheading 6115.93.15, HTSUSA, was changed to read,
"surgical stockings with graduated compression for orthopedic
treatment." Similar descriptions were drafted for the other
compression hosiery at issue. These changes became effective
December 15, 1995, and were included in the 1996 tariff.
You correctly note that prior to 1996, Customs classified
medical compression stockings under 6115.93.15. You further contend
that this earlier provision expressly excluded "other than stockings
merely for the treatment of varicose veins" from the lower rate of
duty provided for surgical stockings. You state that this
exclusionary language was deleted which is instructive and provides
two key points. You assert that one key point is that initially the
language makes it clear that the meta-category of surgical stockings
includes stockings used merely for the treatment of varicose veins.
If the meta-category of surgical stockings did not include such
stockings, then the inclusion of this exclusionary language was
unnecessary, as such stockings would not be properly classified under
this provision. You maintain that words have meanings, particularly
at the national (6 digit) level, and such a clause should not be read
in such a fashion as to render the words meaningless. The second key
point that you assert is that the elimination of this phrase, while
retaining the other language, is clear evidence of an intent to
broaden the provision to include even those stockings used "merely"
for the treatment of varicose veins. Had such a broadening not been
intended, it would have been very simple to retain the exclusionary
language.
As stated in the aforementioned paragraphs, since prior to the
inception of the HTSUSA, to the present, Customs has distinguished
stockings used for varicose veins from compression stockings and
classified the articles separately. In fact, in HQs 086146 and
088272, Customs provided detailed analyses as to the differences
between surgical compression stockings and compression stockings for
the treatment of varicose veins. Moreover, in 1993, after Customs
reviewed the proper classification of compression stockings and
determined that they were more appropriately provided for in Chapter
61, HTSUSA, as opposed to Chapter 90, HTSUSA, subheading 6115.93.15,
HTSUSA, was created specifically for compression stockings and it
included language that excluded stockings for varicose veins.
Firstly, you have provided no objective evidence, other than your
personal inferences concerning the underlying reasons as to why the
exclusionary language was initially included in subheading
6115.93.15, HTSUSA, and the later deletion of the exclusionary
language. Secondly, we must emphasize that while the wording of
subheading 6115.93.15, HTSUSA, was altered, the numbering was not
changed. This indicates, according to ITC practice, that the scope
of the cited subheading had not changed, despite the modified
wording. Finally, the tariff classification history of compression
stockings and stockings for varicose veins manifests classification
in separate chapters and subsequently separate subheadings.
Therefore, it would be difficult to conclude that goods that have
continuously been classified separately would be provided for in the
same subheading without clear and express language either justifying
or authorizing the change.
Customs is of the opinion that the instant articles are not
surgical compression stockings. Instead, they are more similar in
terms of function to either pantyhose or stockings used in the
treatment of varicose veins. In the cited HQ rulings which determined
that the goods therein were surgical compression stockings, the
stockings were available solely by prescription, the patient had to
be measured and fitted for a proper fit, and were designed to have a
compression range of 30 to 60 millimeters of mercury. The highest
compression of any of the stockings or pantyhose at issue is 28.3
millimeters of mercury. All of the subject merchandise can be
purchased without prescription at
medical and supply houses, and they do not have the overall
appearance of surgical compression stockings since as you state, they
are more "fashionable". Due to the marked differences, between goods
that have been properly classified as surgical compression stockings
and the instant merchandise, the instant merchandise is not
classifiable as surgical compression stockings or pantyhose under the
applicable subheadings of Heading 6115, HTSUSA.
HOLDING:
Based upon the foregoing, Samples One and Three, are
classifiable is subheading 6115.12.2000, HTSUSA, which provides for
pantyhose, including stockings for varicose veins, and footwear
without applied soles, knitted or crocheted, of synthetic fibers,
measuring per single yarn 67 decitex or more. The applicable rate of
duty is 16.6 percent ad valorem and the textile restraint category is
659. Sample Two is classifiable in subheading 6115.93.9020, HTSUSA,
which provides for stockings, including stockings for varicose veins
and footwear without applied soles, knitted or crocheted, of
synthetic fibers, measuring per single yam 67 decitex or more. The
applicable rate of duty is 15.3 percent ad valorem and the textile
restraint category is 632. Sample Four is classifiable in subheading
6115.92.9000, HTSUSA, which provides for stockings, including
stockings for varicose veins and footwear without applied soles,
knitted or crocheted, of cotton. The applicable rate of duty is 14.2
percent ad valorem and the textile restraint category is 332.
The designated textile and apparel category may be subdivided
into parts. If so, visa and quota requirements applicable to the
subject merchandise may be affected. Since part categories are the
result of international bilateral agreements which are subject to
frequent renegotiations and changes, to obtain the most current
information available, we suggest that you check, close to the time
of shipment, the Status Report on Current Import Quotas (Restraint
Levels), an internal issuance of the U.S. Customs Service, which is
available for inspection at your local Customs office.
Due to the changeable nature of the statistical annotation (the
ninth and tenth digits of the classification) and the restraint
(quota/visa) categories applicable to textile merchandise, you should
contact your local Customs office prior to importing the merchandise
to determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division