HQ 081946: Disposable surgical towel, drape and wearing apparel

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 081946

                                  December 29, 1989


          CLA-2 CO:R:C:G 081946 JLJ 826088

          CATEGORY: Classification

          TARIFF NO.: 6307.90.9000; 6307.90.7010; 6210.10.4010

          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
          hensley library
          name: 081946aJLJ