CLA-2 CO:R:C:T 088272 CMR
U.S. Customs Service
District Director
477 Michigan Avenue
Detroit, Michigan 48226
RE: Protest and Application for Further Review #3805-0-000025 of
August 8, 1990; Classification of medical compression
stockings
Dear Sir:
This protest and application for further review was filed
against your classification of the invoiced merchandise under
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.
FACTS:
The merchandise at issue includes various stocking styles
identified as calf length, half thigh length, thigh length, thigh
length with waist attachments and panty stockings, including
maternity panty stockings. Compression arm sleeves are also at
issue. The stockings are of 65 percent nylon, 22 percent natural
rubber, and 13 percent lycra knit fabric. All the stockings are
designed to supply a compression range of 30-40 mm Hg. to 50-60
mm Hg and were invoiced as medical compression stockings. It is
stated that these stockings are available by prescription only.
The patient must be measured and fitted to ensure a proper fit.
Samples of the merchandise at issue were received in this
office.
ISSUE:
Are the articles at issue classifiable as orthopedic
appliances in heading 9021, HTSUSA, as claimed by the importer,
or are they classified as stockings for varicose veins in heading
6115, HTSUSA, as assessed at the port of entry? -2-
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]."
The medical 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 serious
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 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). 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.
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) * * *
-3-
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 medical compression
stockings are orthopedic appliances as defined above or are
principally used for the treatment of varicose veins and
therefore excluded from classification within the heading.
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.
This office has researched medical or surgical compression
stockings for another case involving the same issue herein. In
order to render an informed determination on this matter, we
sought out information from physicians 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." The physician likened
these stockings to trusses. These stockings "prevent significant
swelling and could be determined to prevent deformity."
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.
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 of the Harmonized Commodity
Description and Coding System, accepted pursuant to the CCC
recommendation of 5 July 1989. The new Chapter Note, Note 1(b) -4-
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.
HOLDING:
Protest #3805-0-000025 of August 8, 1990 should be allowed
in full. The compression stockings at issue are classified as
orthopedic appliances in subheading 9021.19.8000, HTSUSA,
dutiable at 5.8 percent ad valorem.
A copy of this decision should be attached to the Form 19 to
be returned to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division