CLA-2 OT:RR:CTF:TCM H237738 LWF
Mr. John Peterson
Neville Peterson LLP
17 State Street, 19th Floor
New York, NY 10004
RE: Revocation of New York Ruling (NY) N235286, dated December 7, 2012; tariff classification of graduated compression hosiery
Dear Mr. Peterson:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) N235286, issued to Total Vein Systems, Inc. (“Total Vein”) on December 7, 2012, concerning the tariff classification of under the Harmonized Tariff Schedule of the United States (HTSUS) of certain graduated compression hosiery. In ruling letter NY N235286, CBP classified two styles of Total Vein graduated compression hosiery under subheading 6115.30.90, HTSUS, which provides for “Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins) and footwear without applied soles, knitted or crocheted: Other women’s full-length or knee-length hosiery, measuring per single yarn less than 67 decitex: Other.” In response to Total Vein’s request, dated January 8, 2013, that CBP reconsider ruling letter NY N235286, CBP has reviewed the ruling letter and determined it to be in error. Accordingly, for the reasons set forth below, CBP is revoking ruling letter NY N235286.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 50, No. 18, on May 4, 2016. No comments were received in response to the notice.
FACTS:
The Total Vein graduated compression hosiery consists of two styles of stockings, the thigh-length “Surgeon’s Choice” stocking and the calf-length “Boost” stocking. Both styles of hosiery provide graduated compression in the range of 20-30 or 30-40 mm of mercury (mm HG), with the strongest compression being applied to the foot and ankle area, and gradually decreasing as the stocking rises up the leg. The graduated compression is designed to help push blood out of the legs and feet by compressing surface veins to increase arterial pressure, thereby causing more blood to return back towards the heart.
The Total Vein graduated compression hosiery is prescribed by physicians to prevent or treat venous disorders of the legs and feet, including blood clots (deep vein thrombosis), varicose veins, and lymphedema. The hosiery is sold on the Internet and in medical and surgical supply stores, where trained personnel use detailed measurements of a patient’s leg to properly fit the stockings and socks. The hosiery is not sold in ordinary retail or fashion retail outlets.
ISSUE:
Whether the Total Vein “Surgeon’s Choice” and “Boost”-style graduated compression hosieries are classified under subheading 6115.10, HTSUS, as graduated compression hosiery, or under subheading 6115.30, HTSUS, as other women’s full-length or knee-length hosiery, measuring per single yarn less than 67 decitex.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
Heading 6115, HTSUS, provides, in pertinent part, as follows:
6115 Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins) and footwear without applied soles, knitted or crocheted:
6115.10 Graduated compression hosiery (for example, stockings for varicose veins):
6115.10.05 Surgical panty hose and surgical stockings with graduated compression for orthopedic treatment
Other graduated compression panty hose and tights:
6115.10.10 Of synthetic fibers (659)
[…]
Other graduated compression hosiery
[…]
6115.10.40 Of synthetic fibers (632)
[…]
6115.30 Other women’s full-length or knee-length hosiery, measuring per single yarn less than 67 decitex:
[…]
6115.30.90 Other
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed Reg. 35127, 35128 (August 23, 1989).
EN 61.15, HS, provides, in pertinent part, that:
This heading covers the following knitted or crocheted goods, without distinction between those for women or girls and those for men or boys:
(1) Panty hose and tights designed to cover the feet and legs (hose) and the lower part of the body up to the waist (panty), including those without feet.
(2) Stockings and socks (including ankle-socks).
(3) Under stockings, used mainly as a protection against the cold.
(4) Graduated compression hosiery, e.g., stockings for varicose veins.
(5) Sockettes intended to protect the feet or toes of stockings from friction or wear.
(6) Footwear without an outer sole glued, sewn or otherwise affixed or applied to the upper, other than babies’ bootees.
[…]
Subheading Explanatory Note.
Subheading 6115.10
For the purposes of subheading 6115.10, “graduated compression hosiery” means hosiery in which the compression is greatest at the ankle and reduces gradually along its length up the leg, so that blood flow is encouraged.
* * * * *
As an initial matter, this office notes that Total Vein’s request for reconsideration of ruling letter NY N235286 concerns the tariff classification of certain graduated compression hosiery under the subheadings of heading 6115, HTSUS. Accordingly, there is no dispute that the instant merchandise is fully described by the terms of heading 6115, HTSUS, which provides, in pertinent part, for “Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins).” Therefore, because this matter requires a determination as to the proper classification of merchandise among the subheadings of the same heading, GRI 6 applies.
Specifically, Total Vein asserts that in ruling letter NY N235286, CBP erroneously classified the “Surgeon’s Choice” and “Boost”-style graduated compression hosieries under subheading 6115.30.90, HTSUS, as women’s full-length or knee-length hosiery. Total Vein therefor seeks revocation of NY N235286 and advocates for the classification of its merchandise under subheading 6115.10, HTSUS, as “graduated compression hosiery (for example, stockings for varicose veins).”
In this case, a good indication of the meaning of “graduated compression hosiery” can be obtained from the Explanatory Notes to heading 61.15, HS. The ENs to subheading 6115.10, HS, describe “graduated compression hosiery” as articles of hosiery in which the compression is greatest at the ankle and reduces gradually along its length up the leg, so that blood flow is encouraged. Subheading EN 6115.10, HS. Additionally, the U.S. National Library of Medicine at the National Institutes of Health (NIH) describes “compression stockings” as physician-prescribed hosiery used to treat leg aches and swelling and, to a lesser extent, blood clots after surgery or injury. See Compression Stockings, U.S. National Library of Medicine (May 12, 2015), http://www.nlm.nih.gov/medlineplus/ency/patientinstructions/000597.htm.
In accord with the meaning of “graduated compression hosiery” provided by the ENs to heading 61.15, HS, CBP observes that the Total Vein “Surgeon’s Choice” and “Boost”-style graduated compression hosieries are provided for eo nomine by the text of subheading 6115.10, HTSUS, as “Graduated compression hosiery (for example, stockings for varicose veins).” Specifically, the Total Vein merchandise consists of two styles of physician-prescribed hosiery that provide graduated compression (at levels of 30-40 or 20-30 mm Hg) to treat venous disorders in the legs and feet, including blood clots (deep vein thrombosis), varicose veins, and lymphedema.
In classifying the Total Vein graduated compression hosiery under subheading 6115.10, HTSUS, this office notes that CBP has previously examined similar classification matters, and has found that compression strength and the use of physician prescriptions are important considerations in determining whether an article of graduated compression hosiery can be properly described as a “surgical stocking with graduated compression for orthopedic treatment” of subheadings 6115.10.05. See, e.g., Headquarters Ruling Letter (HQ) 959399, dated December 16, 1996; and HQ 963517, dated January 2, 2002. In ruling letter HQ 963517, for example, CBP determined that certain graduated compression pantyhose and stocking were properly described as “surgical” hosiery heading 6115, HTSUS, because the articles were primarily prescribed by a physician, and were specially fitted to the patient by certified healthcare personnel.
By contrast, CBP has consistently held that non-prescription graduated compression hosiery—identified by comparatively low compression strengths and suitable for purchase without specialty fitting—are not classifiable as “surgical” hosiery. For example, in HQ 959399, dated December 16, 1996, CBP rejected the classification of various styles of graduated compression panty hose and stockings as “surgical compression stockings for orthopedic purposes, other than stockings merely for the treatment of varicose veins,” because the merchandise supplied less than 30 mm Hg of compression, was available for purchase without prescription or specialty fitting, and was more “fashionable” than articles properly classified as surgical compression stockings. See HQ 959399, dated December 16, 1996.
Similarly, in HQ 963517, discussed supra, CBP drew a clear distinction between physician-prescribed, “surgical” hosiery with graduated compression for orthopedic treatment, as compared to non-prescription, anti-embolism stockings designed to equalize blood pressure along the leg of a non-ambulatory patient. There, CBP declined to identify the anti-embolism stockings as “surgical stockings with graduated compression” for the threshold reason that the anti-embolism stockings did not feature graduated compression; however, CBP notably observed that the anti-embolism stockings were nonetheless distinguishable from surgical stockings, because the anti-embolism stockings were available for purchase without a physician prescription and provided significantly less compression as compared to surgical pantyhose and stockings. See HQ 963517, dated January 2, 2002.
Consistent with the analysis set forth in prior CBP ruling letters distinguishing “surgical stockings” of subheading 6115.10.05, HTSUS, from “other graduated compression panty hose and tights,” CBP finds that the Total Vein “Surgeon’s Choice” and “Boost”-style graduated compression hosieries are substantially similar to merchandise previously classified by CBP as “surgical panty hose and surgical stockings with graduated compression for orthopedic treatment.” Specifically, the “Surgeon’s Choice” and “Boost” hosieries are prescribed by physicians to prevent or treat venous disorders of the legs and feet, including blood clots (deep vein thrombosis), varicose veins, and lymphedema. The hosieries provide graduated compression in the range of 20-30 or 30-40 mm of mercury (mm HG), and are designed to help push blood out of the legs and feet by compressing surface veins to increase arterial pressure. Moreover, CBP observes that the “Surgeon’s Choice” and “Boost” hosieries are sold in medical and surgical supply stores, where trained personnel use detailed measurements of a patient’s leg to properly fit the stockings and socks.
Upon consideration of the channels of sale, use, and therapeutic effectiveness of the “Surgeon’s Choice” and “Boost”-style graduated compression hosieries, CBP finds that the hosieries share the commercial identity of “surgical stockings with graduated compression for orthopedic treatment” and are substantially similar to other “surgical” graduated compression stockings previously classified by CBP. See, e.g., ruling letter HQ 963517. Consequently, the Total Vein graduated compression hosiery is properly classified as graduated compression hosiery of subheading 6115.10, HTSUS, and specifically, in subheading 6115.10.05, which provides, in relevant part, for “surgical stockings with graduated compression for orthopedic treatment.”
HOLDING:
By application of GRIs 6 and 1, the “Surgeon’s Choice” and “Boost”-style graduated compression hosieries are classified under heading 6115, HTSUS, specifically subheading 6115.10.05, which provides for “Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins) and footwear without applied soles, knitted or crocheted: Graduated compression hosiery (for example, stockings for varicose veins): Surgical panty hose and surgical stockings with graduated compression for orthopedic treatment.” The 2016 column one, general rate of duty is free.
EFFECT ON OTHER RULINGS:
In accordance with the analysis set forth above, ruling letter NY N235286, dated December 7, 2012, is hereby REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division