CLA-2 CO:R:C:T 086146 CMR
Jeffrey Meeks, Esq.
Adduci, Mastriani, Meeks & Schill
330 Madison Avenue
New York, New York 10017
RE: Classification of certain compression stockings--
Revocation of NYRL 841156 of June 6, 1989
Dear Mr. Meeks:
This ruling is in response to your submission of November
13, 1989, and subsequent submissions on behalf of your client,
Sigvaris, Inc., regarding the classification of certain
compression stockings.
FACTS:
In NYRL 841156 of June 6, 1989, a surgical compression
stocking was classified in subheading 6115.93.2000, HTSUSA, which
provides for panty hose, tights, stockings, socks and other
hosiery, including stockings for varicose veins, and footwear
without applied soles, knitted or crocheted: other: of synthetic
fibers: other. That ruling focused on the use of the subject
article for varicose veins.
The sample furnished with the original request, model 503,
is a toeless compression stocking made of 70 percent nylon and
30 percent natural rubber. The stockings are knee length and are
designed to supply a compression range of 30 to 40 millimeters of
mercury. Model 504 was submitted with the request for
reconsideration and is essentially identical to model 503 with
the exception that it supplies a compression range of 40 to 50
millimeters of mercury. These stockings are generally of heavy
gauge, opaque, elasticized knit fabric with either one-way or a
two-way stretch. They provide graduated compression and support
for the leg. For example, in the case of swelling, the graduated
compression of the stockings acts to force fluid out of the
affected limb.
-2-
These stockings are available by prescription only through
medical and surgical supply outlets and a patient must have
his/her leg measured by trained personnel at the supply outlet in
order to have a proper fit. The stockings are significantly more
expensive than support hosiery of the type sold in retail stores.
ISSUE:
Are the surgical compression stockings at issue, models 503
and 504, classifiable in heading 6115, HTSUSA, as stockings for
varicose veins or, are they classifiable as orthopedic
appliances of heading 9021, HTSUSA?
LAW AND ANALYSIS:
Classification of products under the HTSUSA is governed by
the General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, provided such
headings or notes do no otherwise require, according to [the
remaining GRIs taken in order]."
In NYRL 841156, it was concluded that the surgical
compression stocking at issue was no more than a compression
stocking for the treatment of varicose veins. Based on this
conclusion, Note 2(c) of Chapter 61, which excludes from Chapter
61 "orthopaedic appliances, surgical belts, trusses or the like
(heading No. 90.21)", was considered inapplicable.
The surgical compression stockings at issue are more than
simply compression 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.
In the past, the Customs Service has recognized surgical
compression stockings 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). While it is not improper to rely on prior rulings of the
Customs Service when seeking to determine the common and
commercial meaning of a term when the legal notes and explanatory
notes of the HTSUSA fail to provide a definition, the HTSUSA is a
new system and therefore, some unavoidable changes in
classification of articles will occur. In this case, it is
noteworthy that the Customs Service considered these articles
similar to surgical belts and trusses. Nonetheless, the
Explanatory Notes of the HTSUSA do provide a definition for
orthopedic appliances which we cannot ignore.
-3-
The Explanatory Notes for heading 9021, in discussing
orthopedic appliances, provide, in relevant part:
These are appliances for:
(i) Preventing or correcting bodily deformities; or
(ii) Supporting or holding organs following an illness or
operation.
They include:
* * *
(10) Trusses (inguinal, crural, umbilical, etc.,
trusses) and rupture appliances.
(11) Appliances for correcting scoliosis and curvature
of the spine as well as all medical or surgical corsets
and belts (including certain supporting belts) * * *
The Explanatory Notes exclude stockings for varicose veins
from heading 9021 and indicate such stockings are classified in
Chapter 61. The issue now becomes whether the surgical
compression stockings are orthopedic appliances as defined above
or are excluded from classification within the heading because
they are principally used for the treatment of varicose veins.
It is helpful to have a better understanding of exactly what
the term "orthopedic" means. Webster's II New Riverside
University Dictionary, (The Riverside Publishing Company) at page
830-831, defines orthopedics as "surgical or manipulative
treatment of disorders of the skeletal system and associated
motor organs." "Orthopedic surgery is the medical specialty that
includes the investigation, preservation, restoration and
development of the form and function of the extremities, spine
and associated structures by medical, surgical and physical
methods." Encyclopaedia Britannica, Vol. 16 (William Benton,
Pub., 1963), at 937.
In order to render an informed determination on this matter,
this office sought out information from qualified members of the
medical profession in the area. We were informed by a physician
of the Department of Surgery, Uniformed Services University of
the Health Sciences, that "while the stockings are used for
patients with varicose veins, they are also used in large numbers
for patients with post-operative swelling, including orthopedic
patients." He likened these stockings to trusses. These
stockings "prevent significant swelling and could be determined
to prevent deformity."
-4-
Another physician contacted by this office, a member of the
staff of George Washington University, informed us that these
stockings act to prevent the consequences of venous disease.
They prevent bodily deformities in regard to venous ulceration
and dermatitis.
Additionally, two physicians of the George Washington
University Medical Center furnished written replies to specific
questions posed by Customs in regard to the principal use of the
compression stockings and how they are viewed by members of the
medical profession.
Based on the information provided to this office by
qualified members of the medical profession, we believe the
compression stockings at issue meet the definition of orthopedic
appliances set out in the Explanatory Notes for heading 9021.
Therefore, they are classifiable as orthopedic appliances of
heading 9021, HTSUSA, at this time.
We must advise you that the Customs Cooperation Council
passed an amendment to Chapter 90 in July 1989 that will effect
the classification of the merchandise at issue in the future.
Amendments to the Nomenclature Appended as an Annex to the
Convention, International Convention on the Harmonized Commodity
Description and Coding System, accepted pursuant to the CCC
recommendation of 5 July 1989. The new Chapter Note, Note 1(b)
will go into effect for all contracting parties on January 1,
1992. The new note provides:
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 bandages, supports for joints or muscles) (Section
XI);
As a contracting party, Customs anticipates that the United
States will take the necessary legislative action to change the
current HTSUSA to include the new Chapter Note as of January 1,
1992. This new note will preclude classification of the
compression stockings at issue in heading 9021, HTSUSA. Since
the stockings will at that time no longer be classifiable as
orthopedic appliances for tariff purposes, Customs will classify
the stockings in heading 6115, HTSUSA, which provides for panty
hose, tights, stockings, socks and other hosiery, including
stockings for varicose veins, and footwear without applied soles,
knitted or crocheted.
-5-
HOLDING:
The compression stockings at issue are classified as
orthopedic appliances in subheading 9021.19.8000, HTSUSA,
dutiable at 5.8 percent ad valorem.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are revoking NYRL
841156 of June 6, 1989, effective with the date of this letter.
However, if after your review of this ruling letter, you disagree
with the legal basis for our decision, we invite you to submit
any arguments you might have with respect to this matter for our
review. Any submission you wish to make should be received
within 30 days of the date of this letter.
This notice to you should be considered a revocation of NYRL
841156 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 841156 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling. However, for the purposes of
future transactions in merchandise of this type, NYRL 841156
will not be valid precedent. We recognize that pending
transactions may be adversely affected by this revocation in
that current contracts for importation arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, you may, at your discretion, notify
this office and may apply for relief from the binding effects of
this decision as may be warranted by the circumstances. However,
please be advised that in some instances involving import
restraints, such relief may require separate approvals from other
government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division