CLA-2 CO:R:C:G 086629 CB
Lynn S. Baker, Esq.
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60606-3693
RE: Request for Reconsideration of HQ 081946 issued
December 29, 1989; Classification of Surgical Garments
and Drapes
Dear Ms. Baker:
This is in response to your letter of February 26, 1990, on
behalf of Baxter Healthcare Corp., requesting a reconsideration
of HQ 081946 issued on December 29, 1989, classifying certain
surgical garments and drapes under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).
FACTS:
Seven articles assembled in Mexico of United States
components were classified. All seven articles, used in
hospitals during surgical procedures, 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. The articles are intended to be disposed of after a
single use.
The seven articles at issue are a perineal towel ("peri
towel"); a surgical drape; a warm-up jacket; a scrub top; scrub
pants; and two operating gowns. The peri towel was classified in
subheading 6307.90.9010, HTSUSA, as other made up articles of
textile materials. The surgical drape was classified in
subheading 6307.90.7010, HTSUSA, as surgical drape of nonwoven
man-made fibers. The garments were classified in subheading
6210.10.4010, as nonwoven disposable apparel designed for use in
hospitals.
Classification of the subject articles as articles of paper
or articles of textile on a base of paper is being sought.
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ISSUE:
Whether the subject articles are properly classifiable as
textile or paper articles?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is made in
accordance with the General Rules of Interpretation (GRI's) 1
through 6. The systematic detail of the HTSUSA is such that
virtually all goods are classified by application of GRI 1, that
is, according to the terms of the headings of the tariff schedule
and any relevant section or chapter notes. Then, if GRI 1 fails
to classify the goods, and if the headings and legal notes do not
otherwise require, the remaining GRI's may be applied, taken in
order.
Garments
It is your opinion that the subject articles are more
properly classifiable as hospital articles of paper or, in the
alternative, as textile articles formed on a base of paper. You
have made several assertions in support of your submissions to
promote your view.
It is your contention that articles constructed from Sontara
should be classified according to their essential character. GRI
3(b) provides that composite goods shall be classified as if
they consisted of the component which gives them their essential
character. You have stated that in HQ 081946 Customs summarily
dismisses the application of GRI 3(b), or classification
according to essential character. In fact, Sontara does qualify
as a composite good within the scope of GRI 3(b). Sontara is a
two layer product composed of a layer of wood pulp fiber combined
with a layer of polyester fiber batt which are not provided for
under a single heading. Therefore, an essential character
determination is appropriate when classifying articles made from
Sontara.
In your submission of February 26, 1990, you state that the
paper component imparts the essential character of Sontara
products because it predominates by weight, is greater in value,
carries the fluid repellency treatment, and it is more
"breathable". You also state that the polyester merely serves to
add strength. According to the information you have provided,
Sontara contains 55% by weight of paper and 45% by weight of
polyester.
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We are not persuaded by the information provided. Customs
Laboratory analysis has shown that many of the polyester
characteristics tend to predominate in the garments and drapes.
The fabric consists by weight of 50.3% polyester fibers and 49.7%
paper fibers. The polyester portion imparts the wearability and
durability of the garment. Also, the polyester enhances the
ability of the composite material to be cut and sewn into a
garment. The Laboratory also found that the instant products do
not possess the physical specifications associated with paper,
i.e. burst strength, tensile strength, fold endurance, etc.
Regarding the assertion that the paper portion is the sole medium
for the fluid repellency treatment, Customs Laboratory testing
has determined otherwise. The fabric's absorbency of the
repellant cannot be credited solely to the presence of paper.
Testing has indicated that if the polyester fibers did not pick
up the fluorohydrocarbon finish the product's outer layer fluid
resistance would be insufficient. In view of the foregoing, it
is Customs position that the essential character of Sontara is
not imparted by the paper portion of the product. Therefore, it
is classifiable as a textile product.
The instant polyester fiber batt is classifiable as a
nonwoven textile material in Heading 5603, HTSUSA. Garments made
up of fabrics of heading 5603, HTSUSA, are classifiable in
subheading 6210.10, HTSUSA. It is Customs opinion that the
Sontara manufacturing process qualifies as a fabric formed on a
base of paper. Therefore, the subject Sontara garments are
classifiable in subheading 6210.10.20, HTSUSA, which provides for
garments made of fabrics formed on a base of paper.
Perineal Towels
It is your contention that HQ 081946 erroneously classified
the "peri towel" in subheading 6307.90.90, HTSUSA, which provides
for other made up articles, other. You have argued that the
"peri towel" is more properly classified under the provision for
surgical drapes formed on a base of paper because they are used
to cover a patient's body during surgical procedures as part of
the draping system. We are in agreement. An industry survey
indicated that these items are, in fact, used to drape a patient
during surgical procedures. Additionally, surgical procedure
manuals were also found to use the terms "towel" and "drape"
interchangeably. Therefore, the "peri towel" is more properly
classified under subheading 6307.90.60, HTSUSA, which provides
for surgical drapes of a fabric formed on a base of paper. The
surgical drape is also classifiable in subheading 6307.90.60,
HTSUSA.
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HOLDING:
The warm-up jacket, scrub top, scrub pants, operating gown,
and operating room gown are classifiable under subheading
6210.10.2000, HTSUSA, which provides for garments, made up of
fabrics of heading 5602, 5603, 5903, 5906 or 5907: of fabrics of
heading 5602 or 5603: of fabrics formed on a base of paper or
covered or lined with paper. The rate of duty is 5.6 percent ad
valorem.
The "peri towel" and surgical drape are classifiable in
subheading 6307.90.6000, HTSUSA, which provides for other made up
articles, including dress patterns: surgical drapes: of fabric
formed on a base of paper or covered or lined with paper. The
rate of duty is 5.6 percent ad valorem.
Pursuant to 19 CFR 177.9(d), HQ 081946 of December 29, 1989,
is hereby revoked. If pending transactions are adversely
affected by this modification, you may, at your discretion,
notify this office and apply for temporary relief from the
binding effects of this new ruling as may be dictated by the
circumstances.
Sincerely,
Harvey B. Fox, Director
Office of Regulations and Rulings