CLA-2 CO:R:C:G 081946 JLJ 826088
Lynn S. Baker, Esq.
Katten, Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60603-3693
RE: Disposable surgical towel, drape and wearing apparel
Dear Ms. Baker:
You requested tariff classifications under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) for seven
articles assembled in Mexico of United States components for your
client, Convertors Division of Baxter Healthcare Corporation of
El Paso, Texas. You submitted samples of all items. Inasmuch as
you did not ask about the applicability of Chapter 98, HTSUSA, to
these items, we will not discuss it here.
FACTS:
All seven articles are used in hospitals during surgical
procedures. All seven items are made of Sontara, a material made
of a polyester fiber batt and a wood pulp paper which are
hydraulically entangled together by a patented water jet process.
They are intended to be disposed of after a single use.
The seven items at issue here are a peri towel, No. 9460; a
surgical drape, No. 29444; a warm-up jacket, No. 661; a scrub
top, No. 9604; scrub pants, No. 9460; an operating gown, No.
990670; and an operating gown, No. 990170. You state that all
the products(other than the towel and drape) are designed to be
worn by medical personnel for use in hospitals. Your client
sells these products, packaged in sterile condition, exclusively
to hospital and medical facilities.
-2-
The warm-up jacket is a waist-length jacket which has knit
cotton cuffs and a band of knit cotton around the neck. It also
has five plastic snap-type closure devices on the back.
The scrub top is a short-sleeved, V-necked top which slips
over the head. It has a single pocket of Sontara stiched to the
front.
The scrub pants are long pants with an elastic gathered
waist and a pocket of Sontara stitched to the back.
The operating gown, No. 990170, is a gown made of Sontara,
with knit cotton cuffs, two tie belts of Sontara stitched to the
sides, and a strip of self-fastening material at the top of the
back opening for closure purposes.
The operating gown, No. 990670, is a gown made of Sontara,
with knit cotton cuffs, two tie belts of Sontara stitched to the
sides, and a strip of self-fastening material at the top of the
back opening for closure purposes. This gown also has a rein-
forced panel on the inside of the front of the gown. The
reinforced panel is a layer of rayon, laminated with plastic and
bonded to the body of the gown around the edges of the panel.
The sleeves of the gown are reinforced in the same way.
The peri towel is a perineal towel which is placed on the
patient while he is on the operating table. It is made of two
layers of Sontara glued together around the edges. On one side
of the towel, adhesive has been applied on a U-shaped area and
covered with removable plastic tape. During an operation, the
tape is removed and the adhesive is used to secure the towel to
another surface.
The surgical drape is a large rectangular drape of Sontara,
with a pleat-like insert at either end. In the center of the
drape is a reinforced panel of laminated paper which has been
attached to the drape with adhesive around the edges. In the
center of the panel is an opening which is covered with a layer
of plastic or paper. Also attached to the reinforced surface of
the drape are a clear plastic irrigation pouch with a plastic
connector for tubing and two pieces of clear plastic which are
used as instrument pouches.
-3-
The warm-up jacket has been treated for anti-pilling. The
other six items have been treated for fluid repellancy with
standard fluorocarbon/extender finishes.
ISSUE:
What are the tariff classifications of these seven articles?
LAW AND ANALYSIS:
Under the Tariff Schedules of the United States (TSUS),
Sontara was classified as a reinforced paper in item 253.35, TSUS
(with products of Sontara classified as articles of paper in item
256.85, TSUS), by Customs Headquarters Ruling Letter (HRL) 027919
of July 6, 1973, and HRL 055364 of February 19, 1980. You rely
on these rulings and on the draft TSUS to HTSUSA cross-reference
as support for your contention that Sontara is a paper classified
in Chapter 48, HTSUSA.
To begin with, prior Customs rulings under the TSUS will be
considered on a case-by-case basis because of the substantial
differences between the TSUS and the HTSUSA. Sontara was
classified under the provision for cloth-lined or reinforced
paper in item 253.35, TSUS. The only place in the HTSUSA where
similar language appears is in the statistical suffix for
subheading 4807.99.2000, HTSUSA. It is well established that
statistical suffixes carry no legal weight. In the HTSUSA, this
principle is codified in General Statistical Note 2(b), which
says that the legal text of the HTSUSA consists of the text other
than the statistical suffix.
General Rule of Interpretation (GRI) 1 states that "...for
legal purposes, classification shall be determined according to
the terms of the heading and any relative section or chapter
notes...." Heading 4807 covers "Composite paper and paper board
(made by sticking flat layers of paper or paperboard together
with an adhesive)...." Sontara is not made in this fashion; it
is made by entangling paper with a polyester fiber batt through a
water jet process. Because Sontara is not made in the manner
required for composite paper, it cannot be classified as a
composite paper.
-4-
The draft TSUS cross-reference, which you also cite in
support of your position, was mentioned, in a notice published in
the Federal Register (53 F.R. 27447 of July 20, 1988), as having
no legal standing. In that notice, importers were advised to ask
Customs for a tariff classification ruling if they wanted to
ascertain their product's HTSUSA classification.
A surgical gown made of Sontara has already been classified
under the HTSUSA. In HRL 084362 of August 11, 1989, we found
that Sontara was a composite good because it was composed of two
layers, a layer of polyester fiber batt and a layer of wood pulp
paper. We held that GRI 3(a) did not apply because both Heading
4818 (articles of paper apparel) and Heading 6210 (garments made
up of nonwoven fabrics) referred to only part of the materials
contained in the composite good; therefore, they were considered
to be equally specific. We found that GRI 3(b) did not apply
because neither the paper nor the nonwoven polyester fiber
imparted the essential character to the Sontara.
We found that the merchandise was classified according to
GRI 3(c), which says that when goods cannot be classified by
reference to 3(a) or 3(b), they shall be classified under the
heading which appears last in numerical order among those being
considered. Between Heading 4818 (paper apparel) and Heading
6210 (nonwoven textile apparel), Heading 6210 occurred last, so
the surgical gown was classified in subheading 6210.10.4010,
HTSUSA.
Following the rationale set forth in HRL 084362, the instant
Sontara items must be classified under GRI 3(c) as articles of
nonwoven textile fabric rather than as paper articles because
Headings 6210 and 6307 occur later in numerical order than
Heading 4818.
HOLDING:
The peri towel, No. 9460, is classified under the provision
for other made up articles of textile materials: other: other,
in subheading 6307.90.9010, HTSUSA, dutiable at the rate of
7 percent ad valorem. Products of Mexico classified in
subheading 6307.90.9010, HTSUSA, are eligible for duty-free
entry under the Generalized System of Preferences (GSP) if all
applicable requirements are met. Textile category 369 applies to
this subheading.
-5-
The surgical drape, No. 29444, is classified under the
provision for other made up articles of textile materials: other:
surgical drapes: other, in subheading 6307.90.7010, HTSUSA,
dutiable at the rate of 9 percent ad valorem. It may be eligible
for a reduced duty rate of 5.6 percent ad valorem under
subheading 9902.62.10, HTSUSA, which provides for bonded fiber
fabric disposable surgical drapes, of man-made fibers.
The warm-up jacket, No. 661; the scrub top, No. 9604; the
scrub pants, No. 9460; the operating gown, No. 990170; and the
operating gown, No. 990670, are classified under the provision
for garments made up of fabrics of heading 5602, 5603, 5903, 5906
and 5907: of fabrics of heading 5602 or 5603: other: nonwoven
disposable apparel designed for use in hospitals, clinics,
laboratories or contaminated areas, in subheading 6210.10.4010,
HTSUSA, dutiable at the rate of 17 percent ad valorem. The gowns
may be eligible for a reduced duty rate of 5.6 percent ad valorem
under subheading 9902.62.10, HTSUSA, which provides for bonded
fiber fabric disposable gowns, sterilized or in immediate
packings ready of sterilization, for use in performing surgical
procedures, of man-made fibers.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc:A.D. N.Y. Sea (NIS-234 and NIS-350)
1cc: D.D., El Paso, Texas
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