CLA-2 CO:R:C:G 081945 PR
Lynn S. Baker, Esquire
Katten, Muchin & Zavis
525 West Monroe Street, suite 1600
Chicago, Ill. 60606-3693
RE: Classification of Disposable Shoe Covers
Dear Ms.Baker:
This ruling is in response to your letter of November 3,
1988, and subsequent letters, on behalf of Baxter Healthcare
Corporation, concerning the tariff status of disposable shoe
covers.
FACTS:
The products which are the subject of this ruling are three
types of disposable shoe covers. Each of the covers consist of
a light-weight material stitched closed on the bottom and an
elasticized opening at the top, thus creating an article that can
be slipped over a shoe for the protection of the shoe. The
covers differ only in the material from which they are made.
Style 4668 consists of a material that has two plies of tissue
paper internally reinforced with nylon. Style 4870 is made from
spunbonded polypropylene fibers. Style 4811 is made from a two
layer material called "Assure" which is manufactured on a
fourdrinier paper making machine utilizing what is commonly
referred to as the "wet process". It is a two layered sheet; a
layer of tissue paper made entirely of wood pulp, laminated to a
layer of wood pulp combined with a polyester fiber fabric. It
appears reasonable from the figures provided that we assume the
polyester fibers exceed the wood pulp in weight in the layer in
which those two materials are combined.
ISSUES:
There are three primary issues involved in this ruling.
(1) Where wood pulp and textile fibers are formed into a fabric,
how is it determined whether the resultant material is paper or a
textile nonwoven fabric? (2) Is Style 4811, which consists of
two layers of material, classifiable in Section XI, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), as a
textile article, or under Heading 48, HTSUSA, as a paper article?
and (3) Are shoe covers classifiable as clothing accessories, or
as other textile or paper articles?
LAW AND ANALYSIS:
ISSUE ONE
It is Customs view that where wood pulp and textile fibers
are combined, the material which predominates by weight will
determine whether the resultant mixture is classifiable as paper
or as a nonwoven textile fabric.
This view is supported by the Harmonized Commodity
Description and Coding System, Explanatory Notes, which are the
official interpretation of the HTSUSA at the international level
(the 4 and 6 digit headings). The Explanatory Notes, at page
774, in explaining the coverage of Heading 5603, HTSUSA
(nonwovens, whether or not impregnated, coated, covered, or
laminated), states, "A nonwoven is a sheet or web of
predominately textile fibers oriented directionally or randomly
and bonded." (underscoring added) In addition, The Explanatory
Notes For Chapter 48, HTSUSA, wherein most paper and paper
products are classifiable, state:
Paper consists essentially of the cellulosic fibers of the
pulps of Chapter 47 felted together in sheet form. Many
products, such as certain tea-bag [sic] materials, consist
of a mixture of these cellulosic fibers and of textile
fibers (in particular man-made fibers as defined in Note 1
to Chapter 54). Where the textile fibers predominate by
weight, the products are not regarded as paper and are
classified as nonwovens (heading 56.03). (at page 664,
underscoring added).
ISSUES 2 and 3
These two issues are interrelated and are treated together.
As noted above, where pulp and textile fibers are combined into a
single sheet, the predominate material by weight will determine
whether the sheet is paper or textile for tariff purposes. In
this instance, Style 4811 is composed of a two layer material,
one layer of paper and one layer of a combination of pulp and
textile fibers, with the textile fibers predominating by weight.
Therefore, that second (combination) layer is considered to be a
nonwoven textile fabric.
In determining whether Style 4811 is classifiable as a
textile or a paper article, General Rule of Interpretation (GRI)
1 requires that we look not only at the wording of the headings,
but also at any relevant section and chapter notes. In this
connection, Section XI, Note 1(m), HTSUSA, provides that Section
XI, wherein most textile articles are located, does not cover
"Products or articles of Chapter 48". Accordingly, if Style 4811
is an "article of Chapter 48", it is classifiable as such and not
as a textile article.
It is Customs view that an article consisting of separate
layers of textile fabric and paper laminated together, should not
automatically, by virtue of Note 1(m), be classified in Chapter
48. To do so would nullify both Subheading 6307.90.60, in
Section XI, which provides for surgical drapes of fabric formed
on a base of paper or lined with paper, and the Explanatory Notes
at page 675, which state that Heading 4807, HTSUSA, which
provides for composite paper, includes
. . . paper and paperboard which are internally reinforced
with . . . textile . . . provided the essential character
of the products remains that of paper or paperboard.
Without clear and compelling reasons, Customs will not
nullify either a statutory provision in the HTSUSA, or a clear
pronouncement in the Explanatory Notes. In this situation, there
is no specific provision in Chapter 48 covering Style 4811. In
the absence of such a provision, and considering both the
statutory language in Heading 6307 and the language of the
Explanatory Notes for Heading 4807, Customs is unable to find
that Style 4811 is a "product or article of Chapter 48" within
the meaning of Chapter XI Note 1(m).
As a laminate comprised of two separate component materials,
the Style 4811 is considered to be mixed or composite goods,
within the purview of GRI 3, HTSUSA. In order to ascertain
whether GRI 3(a), relative specificity, applies, it must be
determined which provisions are competing.
Shoe covers are not classifiable in Chapter 64, HTSUSA,
which contains the provisions for footwear, because the
Explanatory notes state:
For the purposes of this Chapter, the term "footwear" does
not, however, include disposable foot or shoe coverings of
flimsy material (paper, sheeting of plastics, etc.) without
applied soles. These products are classifiable according to
their constituent materials. (at pg. 874)
Both Chapter 48 and Chapter 62 contain provisions for
apparel and clothing accessories. In our view, shoes are
commonly considered to be apparel accessories and not "clothing".
While shoe covers may be considered to be shoe accessories,
accessories of clothing accessories are not, themselves, clothing
accessories. This is in consonance with an opinion of the
Customs Cooperation Council contained in its 1987 Compendium of
Classification Opinions. While that opinion is not binding on
the United States, it is an added factor to be considered along
with all other factors.
In Chapter 48, there are two possible provisions that may be
applicable to shoe covers. The first is Heading 4818, HTSUSA,
which provides for specifically listed articles and similar
sanitary and hospital paper articles. The problem with applying
Heading 4818 is that none of the named articles are similar to
the instant shoe covers. Therefore, even though Heading 4818
refers to sanitary and hospital articles, shoe covers can not be
classified under that heading. The second possibility is Heading
4823, HTSUSA, which provides for, among other things, other
articles of paper.
In Section XI, the applicable provision would be under
Heading 6307, HTSUSA, which provides for other made up articles
of textile fabric.
GRI 3(a) states, in part, that the heading which provides
the most specific description shall be preferred to headings
providing a more general description. However, when two or more
headings each refer to part only of the materials or substances
contained in mixed or composite goods, those headings are to be
regarded as equally specific. In this instance, Headings 4823
and 6307 each refer in to part only of the material in the shoe
covers, which are composite goods. Accordingly, GRI 3(a) is not
applicable.
GRI 3(b) states that if composite goods cannot be classified
in accordance with GRI 3(a), they shall be classified as if they
consisted of that component or material which gives them their
essential character. In this regard, we believe that neither
the paper nor the nonwoven fabric imparts the essential character
to the merchandise. Both are present in substantial quantity and
value, and each is necessary to the use and function of the
article. Accordingly, the shoe covers cannot be classified in
accordance with the requirements of GRI 3(b) and, therefore, GRI
3(c) becomes applicable.
GRI 3(c) provides that when goods cannot be classified by
reference to GRI's 3(a) and 3(b), they shall be classified under
the heading which appears last in numerical order among those
being considered.
HOLDING:
In accordance with the above, the subject shoe covers are
classifiable as follows:
1. Style 4668, which is made of two plies of paper
internally reinforced with nylon, a material of Heading 4807
(composite paper), is classifiable under the provision for other
articles of paper, in Subheading 4823.90.8500, HTSUSA, with duty
at the 1989 rate of 5.3 percent ad valorem. This merchandise is
currently not subject to international textile restraints.
2. Style 4870, which is made from a spunbonded nonwoven
fabric, is classifiable under the provision for other made up
textile articles, in Subheading 6307.90.9050, HTSUSA, with duty
at the 1989 rate of 7 percent ad valorem. This merchandise is
currently not subject to international textile restraints.
3. Style 4811, which is made from a two ply material, paper
and nonwoven textile fabric, is classifiable under the provision
for other made up textile articles, in Subheading 6307.90.9050,
HTSUSA, with duty at the 1989 rate of 7 percent ad valorem. This
merchandise is currently not subject to international textile
restraints.
Sincerely,
John Durant, Director
Commercial Rulings Division