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HQ 081946

December 29, 1989

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


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.


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.

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.

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.


What are the tariff classifications of these seven articles?


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.

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.


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.

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.


John Durant, Director

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