HQ 955589: Stockinette Used During Surgical Procedures to Keep Patient's Legs andFeet Warm

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                   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