CLA-2 CO:R:C:T 952937 NLP
Ms. Ann M. Williams
A.N. Deringer, Inc.
30 West Service Road
Champlain, NY 12919-9703
RE: Spun-bonded fabric; disposable medical apparel; men's pants
and tops; ladies dresses; gowns; lab coats; jumpsuits;
heading 6210; subheading 9902.62.10; HRL 950719
Dear Ms. Williams:
This is in response to your letter dated November 16, 1992,
on behalf of your clients, Marimac Inc., and MedSafe U.S.A. Inc.,
in which you requested a reconsideration of DD 878029 dated
October 1, 1992. Specifically, you request a ruling on the
applicability of subheading 9902.62.10, Harmonized Tariff
Schedule of the United States (HTSUS), to the disposable apparel
made for the medical industry that was the subject of DD 878029.
Literature on the subject apparel was submitted for our review.
FACTS:
The articles at issue are all disposable garments made from
a spun-bonded polypropylene material. The apparel is especially
made for the medical industry to comply with the new OSHA
regulations regarding the use of fluid barrier garments.
Each of the items is a loose-fitting functional garment
designed to protect the wearer from a variety of fluid
contaminants. They are intended to be worn in the hospital
environment. Ruling DD 878029 described the garments under
consideration as: a pair of men's pants, a lady's dress, a lab
coat, a jumpsuit and a man's top. The apparel was classified in
subheading 6210.10.4010, HTSUS, which provides for "[g]arments,
made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907:
[o]f fabrics of heading 5602 or 5603: [o]ther: [n]onwoven
disposable apparel designed for use in hospitals, clinics,
laboratories or contaminated areas."
It is your position that the garments are classifiable in
subheading 9902.62.10, HTSUS, which provides for "[s]punlaced or
bonded fiber fabric disposable gowns of manmade fibers intended
for use during surgical procedures (provided for in subheading
6210.10.40) and spunlaced or bonded fiber fabric disposable
surgical drapes of manmade fibers (provided for in subheading
6307.90.70)." Articles that are eligible for classification in
this subheading and that originate in the territory of Canada, in
accordance with the United States Canada Free Trade Agreement
(CFTA), are entitled to entry free of duty.
ISSUE:
Whether the subject apparel is classifiable under subheading
6210.10.4010, HTSUS, or in subheading 9902.62.10, HTSUS?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings 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 GRI's may be applied, taken in
order.
Heading 9902, HTSUS, deals with a wide variety of goods
which have a temporary reduction in their rate of duty by virtue
of legislative action.
Subheading 9902.62.10, HTSUS, provides for "[s]punlaced or
bonded fiber fabric disposable gowns of manmade fibers intended
for use during surgical procedures (provided for in subheading
6210.10.40) and spunlaced or bonded fiber fabric disposable
surgical drapes of manmade fibers (provided for in subheading
6307.90.70)." For classification to be proper within this
provision, there are specific prerequisites that need be meet:
1) the article must be comprised of spunlaced or
bonded fiber fabric;
2) the article must be disposable;
3) the article must be a gown;
4) the article must be of manmade fibers;
5) the article must be intended for use during
surgical procedures; and
6) the article must be provided for in subheading
6210.10.40, HTSUS.
The subject garments are made of spun-bonded fiber manmade
fabric, they are disposable and they are provided for in
subheading 6210.10.40, HTSUS. However, with the exception of the
dress, the garments at issue are not gowns. Moreover, all of the
subject garments, including the dress, are not intended for use
during surgical procedures but for general hospital use.
Therefore, all the garments do not meet requirement #5. In order
for classification to be proper under subheading 9902.62.10,
HTSUS, all the aforementioned criteria need be met. As these
garments do not meet all the criteria, Customs is precluded from
classifying these articles under subheading 9902.62.10, HTSUS.
See, Headquarters Ruling Letter 950719, dated December 31, 1991,
in which a nonwoven unisex top and pants that were comprised of
spunlaced or bonded fiber fabric were classified in subheading
6210.10.40, HTSUS. Though these articles were made of the
requisite materials, were disposable and intended to be worn
during surgical procedures, they were not gowns. Therefore, they
were not classifiable in subheading 9902.62.10, HTSUS.
Finally, we note that Customs cannot unilaterally change the
scope of subheading 9902.62.10, HTSUS, to include pants, tops,
lab coats and jumpsuits within the definition of "gowns". Change
in this area must be effected by means of legislative action.
HOLDING:
DD 878029 is hereby affirmed. The subject garments are
classified in subheading 6210.10.4010, HTSUS, which provides for
"[g]arments, made up of fabrics of heading 5602, 5603, 5903, 5906
or 5907: [o]f fabrics of heading 5602 or 5603: [o]ther:
[n]onwoven disposable apparel designed for use in hospitals,
clinics, laboratories or contaminated areas." The rate of duty
is 17 percent ad valorem. Articles classified in this subheading
that originate in the territory of Canada are entitled to a 8.5
percent ad valorem rate of duty under the CFTA, upon compliance
with all applicable regulations.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division
These garments, excluding the gown, meet the requirements of
1,2,4 and 6. The pants, lab coat, jumpsuit and top are not gowns
and hence they do not meet requirement #3. In order to qualify
for the reduced duty rate in this subheading, all the