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HQ 955589


June 8, 1994

CO:R:C:F 955589 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9590

Mr. Robert F. Seeley
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, IL 60661-3693

RE: Stockinette Used During Surgical Procedures to Keep Patient's Legs and Feet Warm

Dear Mr. Seeley:

This is in further reference to your letter of October 15, 1993, requesting a binding classification ruling regarding the subject product and its eligibility for treatment under subheading 9802.00.80, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We responded to the latter part of your inquiry in our letter of February 14, 1994 (Headquarters Ruling Letter (HRL) 557629). This letter will be limited to classification of the product if it were not eligible for treatment under the above-noted subheading. A sample of the product was included with your request.

FACTS:

The stockinette is designed for use in hospital operating rooms. It covers the foot and leg, up to and including the thigh, and is used to keep a patient's legs and feet warm and to assist circulation during surgical procedures. The product consists of two tubular lengths of material sewn together at the bottom to form a stocking-like product. The outer tube is made from a thermoplastic elastomer identified as "Kraton." The inner line tube is made from nylon knit fabric.

ISSUE:

What is the classification of the subject product? - 2 -

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the classification of the stockinettes we noted that they are composed of materials that would be classifiable under various headings and that there is no specific heading that refers to all the components of the product. Since the product is composed of different materials and is not specifically covered by GRI 1, we referred to GRI 3. Although GRI 3(a) provides that the heading with the most specific description shall be preferred to other headings, when 2 or more heading refer to a part only of the materials or substances contained in mixed or composite goods, the headings are to be considered as equally specific. We found that to be the case with this article so it could not be classified under that GRI.

We next referred to GRI 3(b) which covers composite goods consisting of different materials or made up of different components and goods put up in sets for retail sale which cannot be classified by reference to GRI 3(a). GRI 3(b) provides that these goods are to be determined by the nature of material or component which gives them their essential character. It also provides that while the factor which determines essential character will vary as between different kinds of goods, it may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In considering the purpose of each component of the stockinette, we note that the nylon line allows the product to be slid over the patient's leg more easily, without chafing the skin or snagging the hair on the patient's leg. It also provides a comfortable surface against the skin. The Kraton prevents heat from escaping the extremity. The elastomeric property allows for a tight fit, stretching to accommodate the legs, while still exerting pressure to promote circulation. Thus, the Kraton component allows the stockinette to perform its intended function, with the nylon serving a secondary function of providing comfort and ease of placement. In addition, the Kraton - 3 -
component predominates over the nylon component by value and weight. Thus, we agree with counsel's conclusion that the essential character is imparted by the Kraton component.

Subheading 6115.93.15, HTSUSA, provides for surgical compression stockings for orthopedic purposes, other than stockings merely for the treatment of varicose veins. Orthopedic purposes include preventing or correcting bodily deformities, or supporting or holding organs following an illness or operation. the instant stockinette, however, are limited to use as a circulatory aid and source of warmth during the surgical procedure itself, and perform no remedial, supportive, or orthopedic function.

We considered whether the product would be wearing apparel accessories, pursuant to heading 6117, HTSUSA. In HRL 952005, dated August 26, 1992, we concluded that accessories must be "related to clothing, intended for use with clothing and of secondary importance to clothing." An article which added nothing to clothing's "beauty, convenience nor effectiveness" was not a clothing accessory. We do not believe that the stockinettes which do not complement clothing in the above manner are clothing accessories.

We also concluded that the product was not wearing apparel. As noted in HRL 952204, dated April 12, 1993, "all things worn by humans are not necessarily wearing apparel." Admiral Craft Equip. Corp. v. United States, 82 Cust. Ct. 162, C.D. 4796 (1979), referenced in the last noted HRL indicates that items are not considered wearing apparel when the use of those items goes "far beyond that of general wearing apparel."

We next considered the possible application of heading 4015, HTSUSA. The ruling request suggested such a classification because Kraton was a thermoplastic rubber. In analyzing this possibility we considered Note 4(a) of Chapter 40, HTSUSA. The note describes synthetic rubber as "unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non- thermoplastic substances which, at a temperature between 18 and 29 degrees C, will not break on being extended to three times their original length, within a period of 5 minutes, to a length not greater than 1 1/2 times their original length."

No specifics were provided, with the original ruling request or subsequent requests by this Office, for the thermoplastic - 4 -
elastomer. However, based on analyses of similar material, it is unlikely that Kraton meets the definition of synthetic rubber. Other thermoplastic elastomers have been found to be saturated synthetic substances which, if vulcanized, lose their elastic properties and, therefore, do not meet the Chapter 40 definition of synthetic rubber.

We, therefore, have concluded that the subject stockinettes would be properly classifiable as an other articles of plastic in chapter 39, HTSUSA.

HOLDING:

A stocking-like product with an outer tube of thermoplastic elastomer and an inner tube of nylon fabric which is designed to keep a patient's legs and feet warm and to assist circulation during surgical procedures is classifiable in subheading 3926.90.9590, HTSUSA. Products classifiable under that subheading which provides for other articles of plastics, other, is subject to a general rate of duty of 5.3 percent ad valorem.

Sincerely,

John Durant, Director

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