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HQ 959399




December 16, 1996

CLA-2 RR:TC:TE 959399 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6115.12.2000; 6115.93.9020; 6115.92.9000

David J. Craven, Esq.
Riggle And Craven
205 West Wacker Drive
Suite 2022
Chicago, IL 60606-1215

RE: Classification of certain pantyhose and stockings; Surgical Compression Stockings; Stockings for Varicose Veins

Dear Mr. Craven:

This is in response to your inquiry of May 6, 1996, requesting a tariff classification ruling for pantyhose and stockings on behalf of your client MediUSA, in accordance with the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted for examination.

FACTS:

Four representative samples were submitted. The articles at issue are described as follows:

1. Sample one: 70 denier pantyhose comprised of 82 percent nylon/l 8 percent spandex; The spandex provides a compression of approximately 12 mercury. The graduated compression ranges from 17.1 mm mercury at the ankle to 8 mm mercury at the thigh.

2. Sample two: 140 denier calf stocking comprised of 78 percent nylon/l 2 percent spandex with a compression of approximately 17 mm mercury. The graduated compression ranges from 23 mm mercury at the ankle to 14.6 mm mercury at the calf.

3. Sample three: 140 denier pantyhose comprised of 78 percent nylon/12 percent spandex with a compression of approximately 17 mm mercury. The graduated compression ranges from 23mm at the ankle to 11 mm mercury at the thigh.

4. Sample four: 280 denier calf stocking comprised of 27 percent nylon/66 percent cotton/
7 percent spandex with a compression of approximately 22mm mercury. The graduated compression ranges from 28.4 mm mercury at the ankle to 13.5mm mercury at the thigh.

You state that the subject stocking will be imported in a variety of sizes and sold to patients through medical and supply houses and similar outlets. You further state that the stockings can be used by either gender and are primarily intended for women with the exception of the 280 denier calf stockings which is primarily intended for men. You note that these stockings differ from prescription medical compression stockings only to the extent that they are not produced in the highest compression ranges, are not intended for sale by prescription only, and are more fashionable than traditional medical compression stockings. In essence, you believe that the subject goods are compression stockings. You state that the stockings at issue are more than stockings merely for the treatment of varicose veins and while these stockings can be used to treat varicose veins, they are designed and intended to be used for any application in which compression of a particular degree is needed.

ISSUE:

Whether the subject articles are classifiable in the subheadings of Heading 6115, HTSUSA, for medical compression stockings, or in the "other" subheadings of Heading 6115, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

There is no dispute that the subject articles are classifiable under Heading 6115, HTSUSA, which provides for pantyhose, tights, stockings, socks and other hosiery, including stockings for varicose veins, and footwear without applied soles, knitted or crocheted. The issue in this instance is determining the proper subheading for the subject merchandise.

In order for Customs to make this determination we must look to the tariff classification history concerning the subject articles. Since 1988, stockings for varicose veins have been provided for under Heading 6115, HTSUSA. Heading 9021, HTSUSA, in pertinent part, is the provision for orthopedic appliances, including crutches, surgical belts and trusses. In Headquarters Rulings Letter (HQ) 086146, dated March 14, 1991, and HQ 088272, dated March 14, 1991, Customs was faced with the issue of whether compression stockings were classifiable as orthopedic appliances under Heading 9021, HTSUSA, or as stockings for varicose veins under Heading 6115, HTSUSA. Customs noted that prior to the inception of the HTSUSA, "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)."

The Explanatory Notes to the Harmonize Commodity Description and Coding System, although not legally binding, are the official interpretation of the tariff at the international level. The EN to Heading 9021, specifically exclude stockings for varicose veins from Heading 9021, HTSUSA, and indicate such stockings are classified in Chapter 61, HTSUSA. In HQs 086146 and 988272, Customs concluded that "the compression stockings at issue are more than simply 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." Customs stated that the stockings therein met the definition of orthopedic appliances and classified them under Heading 9021, HTSUSA. However, effective January 1, 1992, Chapter 90, HTSUSA, was amended to state the following:

Notes

1. This chapter does not cover:

(b) 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 badges, supports for joints or muscles)
(Section XI);

The aforementioned note resulted in the transference of surgical stockings and pantyhose with compression out of Heading 9021, HTSUSA, to Heading 6115, HTSUSA. In essence, with the inception of Note 1(b), Chapter 90, HTSUSA, compression stockings would no longer be considered orthopedic appliances of Heading 9021, HTSUSA. In 1993, this move effectuated the creation of subheading 6115.93.15, HTSUSA, which specifically provides for surgical compression stockings for orthopedic purposes, other than stockings merely for the treatment of varicose veins. The International Trade Commission (ITC) conducted an investigation in response to an industry wide submission concerning the proper wording of subheading 6115.93.15, HTSUSA, specifically the tariff classification treatment of surgical compression stockings of cotton and surgical compression pantyhose of synthetic fibers and of cotton. As a result of the ITC investigation, subheading 6115.93.15, HTSUSA, was changed to read, "surgical stockings with graduated compression for orthopedic treatment." Similar descriptions were drafted for the other compression hosiery at issue. These changes became effective December 15, 1995, and were included in the 1996 tariff.

You correctly note that prior to 1996, Customs classified medical compression stockings under 6115.93.15. You further contend that this earlier provision expressly excluded "other than stockings merely for the treatment of varicose veins" from the lower rate of duty provided for surgical stockings. You state that this exclusionary language was deleted which is instructive and provides two key points. You assert that one key point is that initially the language makes it clear that the meta-category of surgical stockings includes stockings used merely for the treatment of varicose veins. If the meta-category of surgical stockings did not include such stockings, then the inclusion of this exclusionary language was unnecessary, as such stockings would not be properly classified under this provision. You maintain that words have meanings, particularly at the national (6 digit) level, and such a clause should not be read in such a fashion as to render the words meaningless. The second key point that you assert is that the elimination of this phrase, while retaining the other language, is clear evidence of an intent to broaden the provision to include even those stockings used "merely" for the treatment of varicose veins. Had such a broadening not been intended, it would have been very simple to retain the exclusionary language.

As stated in the aforementioned paragraphs, since prior to the inception of the HTSUSA, to the present, Customs has distinguished stockings used for varicose veins from compression stockings and classified the articles separately. In fact, in HQs 086146 and 088272, Customs provided detailed analyses as to the differences between surgical compression stockings and compression stockings for the treatment of varicose veins. Moreover, in 1993, after Customs reviewed the proper classification of compression stockings and determined that they were more appropriately provided for in Chapter 61, HTSUSA, as opposed to Chapter 90, HTSUSA, subheading 6115.93.15, HTSUSA, was created specifically for compression stockings and it included language that excluded stockings for varicose veins. Firstly, you have provided no objective evidence, other than your personal inferences concerning the underlying reasons as to why the exclusionary language was initially included in subheading 6115.93.15, HTSUSA, and the later deletion of the exclusionary language. Secondly, we must emphasize that while the wording of subheading 6115.93.15, HTSUSA, was altered, the numbering was not changed. This indicates, according to ITC practice, that the scope of the cited subheading had not changed, despite the modified wording. Finally, the tariff classification history of compression stockings and stockings for varicose veins manifests classification in separate chapters and subsequently separate subheadings. Therefore, it would be difficult to conclude that goods that have continuously been classified separately would be provided for in the same subheading without clear and express language either justifying or authorizing the change.

Customs is of the opinion that the instant articles are not surgical compression stockings. Instead, they are more similar in terms of function to either pantyhose or stockings used in the treatment of varicose veins. In the cited HQ rulings which determined that the goods therein were surgical compression stockings, the stockings were available solely by prescription, the patient had to be measured and fitted for a proper fit, and were designed to have a compression range of 30 to 60 millimeters of mercury. The highest compression of any of the stockings or pantyhose at issue is 28.3 millimeters of mercury. All of the subject merchandise can be purchased without prescription at medical and supply houses, and they do not have the overall appearance of surgical compression stockings since as you state, they are more "fashionable". Due to the marked differences, between goods that have been properly classified as surgical compression stockings and the instant merchandise, the instant merchandise is not classifiable as surgical compression stockings or pantyhose under the applicable subheadings of Heading 6115, HTSUSA.

HOLDING:

Based upon the foregoing, Samples One and Three, are classifiable is subheading 6115.12.2000, HTSUSA, which provides for pantyhose, including stockings for varicose veins, and footwear without applied soles, knitted or crocheted, of synthetic fibers, measuring per single yarn 67 decitex or more. The applicable rate of duty is 16.6 percent ad valorem and the textile restraint category is 659. Sample Two is classifiable in subheading 6115.93.9020, HTSUSA, which provides for stockings, including stockings for varicose veins and footwear without applied soles, knitted or crocheted, of synthetic fibers, measuring per single yam 67 decitex or more. The applicable rate of duty is 15.3 percent ad valorem and the textile restraint category is 632. Sample Four is classifiable in subheading 6115.92.9000, HTSUSA, which provides for stockings, including stockings for varicose veins and footwear without applied soles, knitted or crocheted, of cotton. The applicable rate of duty is 14.2 percent ad valorem and the textile restraint category is 332.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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