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HQ 088272

March 14, 1991

CLA-2 CO:R:C:T 088272 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9021.19.8000

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) * * *

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

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

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