United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2002 HQ Rulings > HQ 963250 - HQ 963596 > HQ 963518

Previous Ruling Next Ruling
HQ 963518




January 2, 2002

CLA-2 RR:CR:TE 963518 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6115.12.1000, 6115.93.3000

Port Director
U. S. Customs Service
700 Doug Davis Drive
Atlanta, GA 30354

RE: Decision on Application for Further Review of Protest 1704-99-100357; Classification of Graduated Compression Panty Hose and Stockings

Dear Port Director:

This is in response to the Application for Further Review of Protest Number 1704-99-100357 filed by the importer, Bauerfeind USA, Inc., contesting the classification of graduated compression panty hose and stockings which you forwarded to our office for review on November 22, 1999. The Protestant disagrees with the decision of the port to liquidate the subject merchandise under subheadings 6115.12.2000, 6115.93.6010, and 6115.93.9020, HTSUSA, as other panty hose or stockings. The Protestant claims that the merchandise was properly classified as entered under subheadings 6115.12.1000 and 6115.93.3000, HTSUSA, as surgical panty hose or stockings with graduated compression for orthopedic treatment.

The Application for Further Review of Protest was timely filed and is proper pursuant to Part 174 of the Customs Regulations (19 CFR 174).

FACTS:

The articles under protest are graduated compression panty hose and stockings. The articles are made of synthetic fibers and the measurement per single yarn is 67 decitex or more. The panty hose and stockings are of heavy gauge, opaque and elasticized knit fabric and are designed to supply graduated compression ranging from 20-30 mm Hg.

Compression is measured by how much pressure is required to elevate a column of Mercury (Hg) a certain distance, as measured in millimeters (mm).

The Protestant identifies the products at issue as part of the “Spa Hosiery Collection.” Bauerfeind sells the collection to medical distributors who make these products available at medical supply stores. The panty hose and stockings are available in three different fabric finishes: UltraSilk Sheers, SoftBasics and Champion Powersox. The hosiery is available in a variety of styles: knee-highs, thigh-high short, thigh-high, waist/panty hose, and maternity panty hose.

The panty hose and stockings at issue are principally obtained by prescription and are used for the treatment of venous diseases. In order to obtain a proper fitting for these products, the patient must be measured by certified and well-trained personnel.

The port reclassified the articles as other panty hose and stockings based on the belief that a compression range of 20-30 mm Hg did not supply sufficient compression for orthopedic treatment and that the items were available without prescription.

ISSUE:

What is the proper classification of graduated compression panty hose and stockings under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). 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 taken in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings.

It is undisputed that these products are classified under heading 6115, HTSUSA, as “panty hose, tights, stockings, socks and other hosiery, including stockings for varicose veins, and footwear without applied soles, knitted or crocheted.” It is also undisputed that the articles are “of synthetic fibers, measuring per single yarn 67 decitex or more.” The only issue in this case is whether the items are considered surgical panty hose or stockings with graduated compression for orthopedic treatment within the scope of subheadings 6115.12.1000 and 6115.93.3000, HTSUSA.

Under the Tariff Schedules of the United States (TSUS), surgical support stockings were classified as orthopedic appliances. In Treasury Decision (T.D.) 76-133, Customs offered the following description of surgical stockings:

For tariff classification purposes, a surgical stocking is a leg and foot covering which is made from a heavy gauge, opaque, elasticized fabric with either a one or two-way stretch, and which is worn as a remedial support of the leg. It is designed for use in post-surgical support and in the treatment of thrombophlebitis, varicosities, edema, and other physical ailments, and is sold either singly or in pairs. It is not the type of merchandise commonly known as support hose which can be purchased in a variety of retail stores. Surgical stockings are usually obtained at the direction of a physician at certain medical supply outlets which have personnel specially trained to measure and fit the merchandise to the legs of each individual patient.

The instant products meet this general description of surgical stockings.

With the inception of the HTSUSA, heading 6115, HTSUSA, provided for stockings for varicose veins while heading 9021, HTSUSA, provided for orthopedic appliances. In 1991, Customs distinguished between orthopedic appliances and stockings for varicose veins. Customs held that stockings which supplied a compression range of 30-40 mm Hg, 40-50 mm Hg, or 50-60 mm Hg were classifiable as orthopedic appliances of heading 9021, HTSUSA. See Headquarters Ruling Letter (HQ) 088272, dated March 1, 1992, and HQ 086146, dated March 14, 1991. The articles were available by prescription only through medical and surgical supply outlets and a patient had to be measured and fitted by trained personnel to ensure a proper fit. In describing the stockings as more than simply compression stockings for the treatment of varicose veins, Customs relied on the fact that they were prescribed by a physician for the treatment of serious venous diseases and other serious conditions such as reversible and irreversible lymphedema and severe post-thrombotic treatment. While acknowledging the articles could be used for patients with varicose veins, Customs found that they were also used in large numbers for patients with post-operative swelling, including orthopedic patients. Customs concluded that the articles acted to prevent the consequences of venous disease in that they prevented significant swelling and could be determined to prevent deformity in regard to venous ulcerations and dermatitis.

In 1992, the HTSUSA was amended to transfer surgical stockings and panty hose with graduated compression out of heading 9021, HTSUSA, to heading 6115, HTSUSA. Special subheadings were created to specifically provide for surgical compression panty hose and stockings for orthopedic purposes. For a detailed history of the transfer from heading 9021, HTSUSA, to heading 6115, HTSUSA, see HQ 959399, dated December 16, 1996. Since that time, Customs has consistently limited the classification of surgical compression panty hose and stockings to items which have a minimum compression of 30 mm Hg. HQ 959399, dated December 16, 1996; NY B87014, dated August 6, 1997; NY B81996, dated February 24, 1997; NY E82160, dated June 10, 1999; NY E82592; dated June 11, 1999; NY E82593, dated June 11, 1999; NY E82594, dated June 11, 1999; NY E82595, dated June 11, 1999; NY E82596, dated June 11, 1999; and NY F80388, dated December 28, 1999. These rulings also indicate that Customs has generally required that the articles be prescribed by a physician.

The Protestant argues that panty hose or stockings with a compression range of 20-30 mm Hg are principally worn to prevent or correct bodily deformities and the consequences associated with venous disease and should be classified as surgical panty hose or stockings with graduated compression for orthopedic treatment. The Protestant asserts that although higher ranges may provide better results for certain conditions, 20 mm Hg is presently considered necessary for the treatment of venous disease. Protestant also asserts that many physicians recommend 20-30 mm Hg of compression over higher compression ranges because patient compliance is much higher and symptom improvement is identical.

In support of its arguments, Protestant offers a study which evaluates the effects of duration of use of class I (20-30 mm Hg) graduated compression hosiery following sclerotherapy. See Robert Weiss, Neil Sadick, Mitchel Goldman, & Margaret Weiss, Post-Sclerotherapy Compression: Controlled Comparative Study of Duration of Compression and its Effects on Clinical Outcome Dermatol Surg, 35: 105-108 (1999). Most importantly, the study establishes that “[c]ompression greater than 20 mm Hg is presently considered necessary for reduction of venous insufficiency.” The study makes certain important statements including “. . . in terms of controlling objective and subjective parameters of venous insufficiency no difference was found between class I (20-30 mm Hg) and class II (30-40 mm Hg) compression stockings.” The study also suggests that sclerotherapy results overall can be significantly improved by class I compression and should be part of the post-operative sclerotherapy protocol. In citing other studies, the study concludes that class I (20-30 mm Hg) compression may be recommended over class II since patient compliance is much higher and symptom improvement is identical. See Jungbeck C, Thulin I, Darenheim C, Norgen L. Graduated Compression Treatment in Patients with Chronic Venous Insufficiency; A Study Comparing Low and Medium Grade Compression Stockings. Phlebologie, 12:142-5 (1997).

Protestant also offered several letters from vascular surgeons and dermatologists familiar with the beneficial effects of compression on the venous. The letters indicate agreement within the medical community that surgical stockings with graduated compression of 20-30 mm Hg are principally used for orthopedic purposes and are primarily prescribed by physicians to prevent or correct bodily deformities and the consequences associated with venous disease. The letters support Protestant’s claim that it is widely recognized that 20 mm Hg of compression is considered necessary for the treatment of venous disease. The physicians state that they recommend using surgical supports with graduated compression of 20 to 30 mm Hg to prevent telangiectatic matting following sclerotherapy, to prevent thrombus formation and phlebitic reactions following sclerotherapy, to reduce post-operative edema, to prevent venous ulcerations, to prevent venous dermatitis and as treatment protocol for post-operative invasive vascular procedures.

The letters from the medical authorities also confirm that a patient must be measured by certified and well-trained personnel in order to obtain a proper fit for the stockings. The doctors suggest that patients generally find the hosiery uncomfortable and do not wear them unless directed by a physician. Lastly, the letters advise that surgical stockings are significantly more expensive than support hosiery of the types generally found in retail stores.

Independent research by this office also confirms the Protestant’s claims. Physicians recommend graduated compression therapy as a treatment for venous insufficiency. The partial failure of leg veins to carry blood up towards the heart results in venous disorders which vary in severity from mild varicosity to deep vein thrombosis and thromboembolism. The use of graduated compression stockings is one of the methods used in the prevention and treatment of these disorders. The stockings are constructed so that the maximum pressure is exerted at the ankle and gradually decreasing up the leg, thus achieving a milking effect that helps blood rise toward the heart. Graduated compression hosiery is generally available in three classes of compression; class I specifically covers a compression range of 20-30 mm Hg. Compression stockings are generally prescribed by a physician. The pharmacy or medical supply staff will take measurements of various parts of the foot and leg in order to fit the stocking and prefer that a patient have a prescription which prescribes the amount of compression. Stockings obtained by prescription are often covered by insurance. Graduated compression stockings are significantly more expensive than support hosiery of the types generally found in retail stores. The items at issue are sold at the following approximate prices (and the prices are representative of similar products by other manufacturers):

Item Price panty hose $75.00 to $100.00 each thigh-high $60.00 to $95.00 per pair knee-highs or socks $45.00 to $65.00 per pair

Customs finds that the Protestant has presented credible medical evidence that surgical panty hose and stockings with graduated compression ranging from 20-30 mm Hg should be considered surgical panty hosiery with graduated compression for orthopedic treatment when they are primarily prescribed by a physician and are specially fitted to the patient by certified well-trained personnel. Based on information provided to this office by qualified members of the medical profession and independent research, we believe the instant hosiery is within the scope of the subheadings providing for surgical panty hose and stockings with graduated compression for orthopedic treatment.

To the extent that this ruling conflicts with previous rulings on surgical stockings supplying compression in the range of 20-30 mm Hg, please be advised that those rulings are under review to determine whether they should be the subject of a proposed notice of modification.

HOLDING:

Based on the foregoing, the panty hose are classifiable under subheading 6115.12.1000, HTSUSA, which is the provision for surgical panty hose with graduated compression for orthopedic treatment. The applicable rate of duty was1.2 percent ad valorem in1998 and “Free” in 1999.

The stockings are classifiable under subheading 6115.93.3000, HTSUSA, which is the provision for surgical stockings with graduated compression for orthopedic treatment. The applicable rate of duty was 2.3 percent ad valorem in 1998 and “Free” in 1999.

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: