CLA-2 OT:RR:CTF:TCM H101580 CkG
Port Director
#1 La Puntilla Street Room 214 San Juan, PR 00901
RE: Application for Further Review of Protest No. 4909-10-100009; classification of
surgical liner
This is in response to the Application for Further Review of Protest No. 4909-10-100009, timely filed on behalf of Becton Dickenson Caribe, Ltd. (‘Protestant”), contesting the classification and liquidation by U.S. Customs and Border Protection’s (CBP) of rolls of fabric in heading 6307 of the Harmonized Tariff Schedule of the United States (HTSUS), as “other” made up textile articles.
The subject merchandise was entered on December 18, 2008, at the Port of San Juan. CBP liquidated the entries on October 9, 2009, in heading 6307, HTSUS. Plaintiff claims classification in heading 4818, HTSUS.
FACTS:
The imported merchandise is described on the entry documentation as a “surgical liner”, or alternatively as “paper products” or “other paper coated with plastic.” Counsel for protestant describes the merchandise as a homogenous substrate bonded together from a slurry mixture of cellulose and synthetic fibers formed on a continuous wet laid machine and impregnated with a resin binder formulation. Counsel argues that the cellulose pulp fibers comprise over 50 percent of the weight. Counsel states that the material is cut into coils prior to importation, then shipped on rolls of approximately 100 yards. The material is further cut and sewn after importation for use as a cover or sleeve for surgical blades/scalpels.
The initial examination of a sample of the merchandise by the CBP Laboratory in San Juan, Puerto Rico, described the liner as a non-woven fabric made of polyester staple fibers impregnated with a plastic material, not visible to the naked eye. By request from this office, the laboratory reexamined the sample. A visual examination revealed the presence of some wood fibers. The sample was thus retested for fiber identification and composition using customary and standard CBP Laboratory methods for such cases: 50-01 ((Fiber Analysis: Qualitative (AATCC 20)), 55-05 (Standard Test Method for Mass Per Unit Area (Weight) of Fabric (ASTM D 3776), 55-11 (Fiber Analysis: Quantitative (AATCC 20A), and 32.14 (Standard Practice for General Techniques for Obtaining Infrared Spectra for Qualitative Analysis (ASTM E 1252)). The amended report shows a corrected fiber composition of 80.9% polyester staple fibers and 19.1% cellulose fibers by weight.
ISSUE:
Whether the surgical liner at issue is classified in heading 4818, HTSUS, as paper of webs of cellulose fibers, of a kind used for sanitary purposes, in rolls of a width not exceeding 36 cm; in heading 5603, HTSUS, as a nonwoven fabric; or in heading 6307, HTSUS, as an other made up textile article.
LAW AND ANALYSIS:
The matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and duty assessment. The protest was timely filed within 180 days of liquidation of the entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4909-10-100009 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions at issue are as follows:
4818: Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, diapers, tampons, bed sheets and similar household, sanitary or hospital articles, articlesof apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers:
4818.90.00: Other …
* * * * * *
5603: Nonwovens, whether or not impregnated, coated, covered or laminated:
Other:
5603.94: Weighing more than 150 g/m2:
Other:
5603.94.90: Other…
Other nonwovens, whether or not impregnated, coated or covered:
Other:
5603.94.9090: Of staple fibers…
* * * * * *
6307: Other made up articles, including dress patterns:
6307.90: Other:
Surgical drapes:
Other:
6307.90.72: Other . . . .
* * * * * *
Note 3 to Chapter 56, HTSUS, provides as follows:
Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).
Heading 5603 also includes nonwovens in which plastics or rubber forms the bonding substance.
Headings 5602 and 5603 do not, however, cover:
(a) Felt impregnated, coated, covered or laminated with plastics or rubber, containing 50 percent or less by weight of textile material or felt completely embedded in plastics or rubber (chapter 39 or 40);
(b) Nonwovens, either completely embedded in plastics or rubber, or entirely coated or covered on both sides with such materials, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39 or 40); or
(c) Plates, sheets or strip of cellular plastics or cellular rubber combined with felt or nonwovens, where the textile material is present merely for reinforcing purposes (chapter 39 or 40).
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The General EN to Chapter 48 provides, in relevant part, as follows:
Paper consists essentially of the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form. Many products, such as certain tea bag materials, consist of a mixture of these cellulose fibres and of textile fibres (in particular man made fibres as defined in Note 1 to Chapter 54). Where the textile fibres predominate by weight, the products are not regarded as paper and are classified as nonwovens (heading 56.03).
* * * * * *
EN 56.03 provides, in pertinent part, as follows:
A nonwoven is a sheet or web of predominantly textile fibres oriented directionally or randomly and bonded. These fibres may be of natural or man made origin. They may be staple fibres (natural or man made) or man made filaments or be formed in situ.
Nonwovens can be produced in various ways and production can be conveniently divided into the three stages: web formation, bonding and finishing
Web formation
Four basic methods exist :
(a) by carding or air laying fibres in order to form a sheet. These fibres may be parallel, cross or random oriented (dry laid process);
…
(c) by suspending and dispersing fibres in water, depositing the resultant slurry onto a wire screen and forming a web by removal of the water (wet laid process);
(d) by various specialised technologies in which fibre production, web formation and usually bonding occur simultaneously (in situ process).
II. Bonding
After web formation the fibres are assembled throughout the thickness and width of the web (continuous method) or in spots or patches (intermittent method).
This bonding can be divided into three types :
Chemical bonding, in which the fibres are assembled by means of a bonding substance. This may be done by impregnation with an adhesive binder such as rubber, gum, starch, glue or plastics, in solution or emulsion, by heat treatment with plastics in powder form, by solvents, etc. Binding fibres can also be used for chemical bonding….
Finishing
Nonwovens may be dyed, printed, impregnated, coated, covered or laminated. Those covered on one or both surfaces (by gumming, sewing or by any other process) with textile fabric or with sheets of any other material are classified in this heading only if they derive their essential character from the nonwoven.
…
Except where they are covered more specifically by other headings in the Nomenclature, the heading covers nonwovens in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces without other working, whether or not presented folded or put up in packings (e.g., for retail sale).
* * * * * *
The liquidation of the instant merchandise in heading 6307, HTSUS, as other made up textile articles, was based on an examination of the merchandise by the CBP Laboratory of San Juan, which did not reveal the presence of any cellulose fibers, thus precluding classification in Chapter 48, HTSUS. Upon request, the sample was retested. The reexamination confirmed the presence of wood fibers (the CBP laboratory noted that the heavy impregnation of the material made the cellulose fibers difficult to detect), constituting 19.1% of the total composition by weight, with 80.9% by weight consisting of polyester staple fibers.
The General EN to Chapter 48 notes that products composed of both cellulose and textile fibers where the textile fibers predominate by weight are excluded from classification in Chapter 48, HTSUS. See e.g., HQ 087194, dated June 13, 1990; HQ 082776, dated March 13, 1990; and HQ 083793, dated April 5 1989. Such products are generally classified in heading 5603, HTSUS. In the instant case, the cellulose fibers comprise less than 20% of the total content by weight of the liner material, while the polyester fibers comprise over 80% of the total.
However, we agree that heading 6307, HTSUS, is inapplicable to the imported merchandise. Chapter 63 provides for, inter alia, other made up textile articles. Note 7 to Section XI states that the expression “made up” means:
(a) Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
(c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means;
(d) Cut to size and having undergone a process of drawn thread work;
(e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or
(f) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
Protestant argues that the surgical liners at issue are not “made up” pursuant to the above definition, because the only processing undergone before importation is the cutting of the impregnated material into coils. Protestant asserts that upon importation into Puerto Rico, the material is cut and sewn into covers for surgical blades and scalpels. Assuming the facts as stated are accurate, the liners do not meet the definition of “made up” in Note 7 in their condition as imported, and are thus excluded from classification in heading 6307, HTSUS.
The CBP Laboratory determined that the tested sample primarily consisted of nonwoven staple fabric. Nonwoven fabrics are classified in Chapter 56, HTSUS. Heading 5603, HTSUS, provides for nonwoven fabrics whether or not impregnated, coated, covered or laminated with plastics or rubber. As a nonwoven fabric impregnated with plastic, the instant merchandise is eo nomine provided for in heading 5603, HTSUS. Note 3 to Chapter 56 further notes that heading 5603 also includes nonwovens in which plastics or rubber forms the bonding substance. The EN describes the process of chemical bonding, in which the fibres are assembled by means of a bonding substance, such as plastic. The Fairchild’s Dictionary of Textiles, 7th Edition, further defines “bonding” as follows: “A process of adhering fiber webs or layers of fabric together. Fiber webs may be bonded with adhesives by impregnation.” Since the nonwoven fabric has been impregnated with a plastic material, this would be considered chemical bonding of the fibers in the nonwoven fabric. The fabric at issue is thus classified in heading 5603, HTSUS.
"It is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978).
The initial lab results were clearly in error. However, the reexamination of the sample still did not reveal the presence of cellulose fibers in sufficient quantity to result in classification in heading 4818, HTSUS. In the absence of any evidence that the results of the amended CBP laboratory report were in error, we find that the protestant has not overcome the presumption of correctness due to the CBP lab report. Thus, we conclude that the article is classifiable in heading 5603, HTSUS.
HOLDING:
The impregnated, nonwoven fabric at issue is classified in heading 5603, HTSUS, and is specifically provided for in subheading 5603.94.9090, HTSUSA, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated:
Weighing more than 150 g/m2: Other…: Other nonwovens, whether or not impregnated, coated or covered: Other: Of staple fibers.” The 2008 general, column one rate of duty at the time of entry was Free.
Since reclassification will result in the same rate of duty as claimed, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division