Application for Further Review of Protest No. 1512-20-100291; Classification of Men’s and Women’s graduated compression socks and graduated compression calf sleeves

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H313592 October 19, 2021 OT:RR:CTF:FTM H313592 MJD CATEGORY: Classification TARIFF NO.: 6115.10.40; 6307.90.98 Center Director U.S. Customs and Border Protection Apparel, Footwear & Textiles CEE 555 Battery Street, Room 401 San Francisco, CA 94111 Attn: Daniel Wong, Import Specialist Re: Application for Further Review of Protest No. 1512-20-100291; Classification of Men’s and Women’s graduated compression socks and graduated compression calf sleeves Dear Center Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 1512-20-100291 (“Protest”), timely filed by K&L Gates LLP, on February 6, 2020, on behalf of their client, mediUSA L.P. (hereinafter “Protestant” or “Medi”), contesting U.S Customs and Border Protection’s (“CBP”) tariff classification of several styles of men’s and women’s graduated compression socks and graduated compression calf sleeves under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below. Protestant has asked that certain information submitted in connection with this Protest be treated as confidential. The request for confidentiality is approved. The information contained within brackets in Protestant’s submission and identified attachments to the Protest, forwarded to our office, will not be released to the public. FACTS: The merchandise at issue consists of several styles of Medi’s men’s and women’s graduated compression socks and graduated compression calf sleeves sold under the label CEP Compression (a division of Medi). The socks include knee high socks that cover the foot, ankle, and leg above the knee; and short socks that cover the foot and ankle. The calf sleeves cover the upper ankle and below the knee area. According to Protestant, the socks and calf sleeves are constructed of knit synthetic materials and are principally “marketed to athletes and other active lifestyle consumers as part of Medi’s CEP line of performance sportswear (http://www.cepcompression.com) for maximizing performance, energy, and endurance due to improved blood circulation and for the prevention of injuries.” Protestant further states that all of the socks and calf sleeves feature a minimum compression of 20 to 30 mm Hg, and are worn for the following reasons: [T]o: (i) counter the effects of venous disease and improve venous valve and arterial functions by facilitating blood circulation; (ii) prevent blood pooling and various types of edema, or swelling; (iii) reduce the risk of Deep Vein Thrombosis; and (iv) stabilize muscles and joints to prevent certain types of injuries (e.g., shin splints, plantar fasciitis) and increase proprioception, which refers to an individual's sense of how the body is positioned in space. The graduated compression socks and graduated compression calf sleeves were entered under subheading 6115.10.0500, HTSUSA (“Annotated”), which provides for “[p]anty 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 column one, general rate of duty is free. The socks were reclassified and liquidated under subheading 6115.10.4000, HTSUSA, which provides for “[p]anty 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): Other graduated compression hosiery: Of synthetic fibers (632).” The column one, general rate of duty is 14.6% ad valorem. The calf sleeves were also liquidated and reclassified, but under subheading 6307.90.9889, HTSUSA, which provides for “[o]ther made up articles, including dress patterns: Other: Other: Other: Other: Other.” The column one, general rate of duty is 7% ad valorem. ISSUE: What is the tariff classification of the graduated compression socks and graduated compression calf sleeves? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The Protest was timely filed, within 180 days of liquidation of the entries. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 1512-20-100291 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because it involves matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs courts, but facts are alleged, or legal arguments presented which were not considered at the time of the original ruling. Classification under the HTSUS is determined 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 2 through 6 may then be applied in order. The 2018 and 2019 HTSUS headings under consideration are 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): 6115.10.0500: Surgical panty hose and surgical stockings with graduated compression for orthopedic treatment . . . Other graduated compression hosiery: 6115.10.4000: Of synthetic fibers (632) . . . * * * * * 6307: Other made up articles, including dress patterns: 6307.90: Other: Other: 6307.90.98: Other . . . Other: 6307.90.9889: 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). The EN to 61.15, provides, in relevant part, as follows: This heading covers the following knitted or crocheted goods, without distinction between those for women or girls and those for men or boys: […] (4) Graduated compression hosiery, e.g., stockings for varicose veins. […] 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. EN 63.07, provides, in pertinent part, that: This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. * * * * * Medi argues that the graduated compression socks and graduated compression calf sleeves are surgical panty hose and surgical stockings with graduated compression for orthopedic treatment classified in subheading 6115.10.0500, HTSUSA, which provides for “[p]anty 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.” As an initial matter, we note that the question presented concerns the classification of two articles whose physical characteristics substantially differ from one another. Whereas the compression sock consists of a closed-toe construction, the calf sleeve covers neither the ankle nor the foot. Because the compression socks and calf sleeves substantially differ from one another, the classification of each article must be separately addressed. Inasmuch as the Medi compression socks are fully described by the terms of heading 6115, HTSUS, as graduated compression hosiery, there is no dispute that the compression socks are classified therein. Consequently, because this matter concerns the proper classification of the merchandise in the subheadings of heading 6115, HTSUS, GRI 6 applies. There is also no dispute at the 6-digit level that the compression socks are classified in subheading 6115.10, HTSUS, as “graduated compression hosiery.” Instead, the issue is at the 8-digit level and concerns whether the graduate compression socks are classified in subheading 6115.10.05, HTSUS, as “surgical panty hose and surgical stockings with graduated compression for orthopedic treatment,” or under subheading 6115.10.40, HTSUS, as “other graduated compression hosiery.” Neither the HTSUS nor the ENs define “surgical panty hose and surgical stockings with graduated compression for orthopedic treatment.” When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). “To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic and other materials.” Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). CBP has consistently looked to the U.S. National Library of Medicine (“NLM”) at the National Institute of Health (“NIH”) for the commercial meaning of “surgical panty hose and surgical stockings with graduated compression for orthopedic treatment.” The NLM provides that medical-grade compression stockings are prescribed by a health care provider to treat someone who has just had surgery, or to treat someone with varicose veins or spider veins. Compression stockings work by gently squeezing the legs to move blood up the legs and improve blood flow throughout the legs. The stocking help with “[a]ching and heavy feeling in legs,” “[s]welling in legs,” “[p]reventing blood clots, primarily after surgery or injury when you are less active,” and “[p]reventing complications of blood clots in the legs, such as post-phlebitic syndrome (pain and swelling in the leg).” Compression stockings provide the most pressure at the ankle and less as the stocking rises up the leg. This is also supported by the ENs to subheading 6115.10, HTSUS, which describe compression hosiery as “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.” The NLM further states that one should get a prescription from a doctor to buy compression stockings and to “find a medical equipment store where they can measure your legs, so you get a good fit.” Moreover, the NLM explains that there are many different compression stockings, that come in various pressures, lengths, and colors, and one should consult their doctor to determine what stocking is right for them. National Institute of Health, U.S. National Library of Medicine, Compression Stockings, at https://medlineplus.gov/ency/patientinstructions/000597.htm (last visited, July 29, 2021). Similarly, in Treasury Decision (T.D.) 76-133(3), 10 Cust B, 232 (1976), 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 specialty trained to measure and fit the merchandise to the legs of each individual patient. CBP has previously considered the classification of graduated compression socks and whether or not they are surgical stockings. In Headquarters Ruling Letter (“HQ”) H237738, dated August 17, 2016, which revoked New York Ruling Letter (“NY”) N235286, dated December 7, 2012, CBP found that the “Surgeon’s Choice” and ”Boost” style of graduated compression hosiery was properly classified in subheading 6115.10.05, HTSUS, as surgical hosiery, stating the following: 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. Similarly, in HQ 963517, dated January 2, 2002, CBP found that Protestant’s graduated compression panty hose and stockings were properly classified as surgical panty hose and stockings with graduated compression for orthopedic treatment in subheadings 6115.12.1000, HTSUSA, and 6115.93.3000, HTSUSA. The graduated compression panty hose and stockings had a compression range of 20-30 mm Hg, were “packaged and sold by prescription as part of a line of hosiery with graduated compression which ranges from 20 to 50 mm Hg . . . [and] sold through medical supply houses and similar places by professionals skilled in fitting [the] stockings.” However, in the same case, CBP found that Protestant’s anti-embolism stockings were not surgical stockings and were classified in subheading 6115.93.3000, HTSUSA. Specifically, when comparing the anti-embolism stockings and the other graduated compression panty hose and stockings, CBP stated, “the anti-embolism stockings are distinguishable from the stockings discussed previously in that they are available without prescription and do not require specialized fitting.” Also, the anti-embolism stockings only had a compression of 18 mm Hg when CBP had previously established in that ruling that the minimum compression for surgical panty hose and stockings with graduated compression is 20-30 mm Hg. Likewise, in HQ 959399, dated December 16, 1996, CBP rejected the classification of Protestants graduated compression panty hose and stockings as “surgical compression stockings” because the merchandise supplied less than 30 mm Hg of compression, was available for purchase without prescription, and was more “fashionable” than articles properly classified as surgical compression stockings. Also, in NY N057324, dated May 1, 2009, CBP classified athletic socks “marketed for use after intense training or competition for the purpose of revitalizing muscles in the lower legs” that are “compressed in the ankle at 15.71 mm Hg and in the calf at 21.89 mm Hg,” in subheading 6115.96.9020, HTSUSA. CBP stated that “[t]he items in question are for more general use, and are not prescribed by a physician or fitted as specifically as surgical graduated compression pantyhose or hosiery.” See also NY N240220, dated April 24, 2013; NY K80446, dated November 17, 2003; NY N004757, dated January 11, 2007; and NY 81986, dated February 24, 1997. Based on the aforementioned, we find that the graduated compression socks in this case are not surgical panty hose and surgical stockings with graduated compression for orthopedic treatment classified in subheading 6115.10.05, HTSUS. First, medical-grade compression stockings are prescribed by a doctor, and the compression stockings at issue here do not require a physician’s prescription. Second, medical-grade compression stockings are sold in specialty stores where one’s leg must be measured and fitted by trained personnel. They are not the type of support hose which can be purchased in a variety of retail stores. The compression socks at issue here are sold online and in retail stores, and not do not require fitting by a trained professional. Third, surgical panty hose and surgical stockings are designed for use post-surgery or after injury to prevent blood clots, swelling and aching, and to treat orthopedic ailments such as thrombophlebitis, varicosities, edema, spider veins, etc. As stated by Protestant, the CEP compression socks are “marketed to athletes and other active lifestyle consumers” and designed for “maximizing performance, energy, and endurance due to improved blood circulation and for the prevention of injuries.” This is further supported by the CEP website, under the page for Men’s compression socks, that states “CEP compression socks for men come in a number of different designs and various heights for running, skiing, basketball, tennis, and more. Increase traction, improve circulation, and give your muscles the support and stability they need to prevent injury and decrease recovery time.” The compression socks here are clearly designed for an active segment of the population and not for someone post-surgery or suffering from serious orthopedic ailments. Therefore, based on the aforementioned, the graduated compression socks in this case are not classified in subheading 6115.10.05, HTSUS, as surgical panty hose and surgical stockings with graduated compression for orthopedic treatment. Instead, we find that the graduated compression socks are simply graduated compression stockings for general use or active use and are properly classified under subheading 6115.10.40, HTSUS. With regards to Medi’s graduated compression calf sleeves, we find that because the calf sleeves do not cover a wearer’s foot and ankle, the calf sleeves substantially differ from the Medi compression socks and must be classified separately. The doctrine ejusdem generis means literally, “of the same class or kind,” and as applied to questions of classification, it requires that imported merchandise possess the essential characteristics or purposes that unite articles enumerated eo nomine in order to be classified under the general terms of an HTSUS provision. Here, the footless calf sleeves cannot be described ejusdem generis by the terms “panty hose, tights, stockings, socks and other hosiery,” in heading 6115, HTSUS, because such articles are specifically designed to cover the foot of a wearer. Having determined that Medi’s graduated compression calf sleeves are not described by the terms of heading 6115, HTSUS, we find that the instant calf sleeves are instead classified in heading 6307, HTSUS, as “other made up articles.” Heading 6307, HTSUS, covers made-up articles of any textile material that are not more specifically provided for in other headings of Section XI of the HTSUS. See E