CLA-2 RR:CR:TE 960919 RH
Service Port Director
U.S. Customs Service
797 South Saragosa Road
El Paso, Texas 79907
ATTN: Mary Lou Aguilar
RE: Protest Number 2402-97-100018; disposable surgical gowns
This is in reply to your memorandum of November 14, 1997, forwarding Application for Further Review of Protest (AFR) number 2402-97-100018 to our office for review.
The law firm of Meeks & Sheppard timely filed the AFR on behalf of Johnson & Johnson Medical, Inc., against the liquidation and assessment of duty on four entries of disposable surgical gowns, drapes and packs.
We note that this is the lead protest. Additional AFRs submitted by Meeks & Sheppard, on behalf of Johnson & Johnson Medical, Inc., have been suspended pending our decision in this case. Review of AFR 2402-97-100018 is warranted under 19 CFR §174.23.
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Additionally, we grant the protestant’s request for confidential treatment for the commercial and financial information referring to the ingredients, cost figures and production detail of the merchandise under protest. It has long been the position of the Customs Service that a section 177.2(b)(7) grant of confidentiality is coterminous with Exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)). Exemption 4 was enacted to protect from disclosure information such as customer lists, costs, identities of suppliers, quantities of merchandise, formulas, assets, profits, losses, market shares, and similar information, the disclosure of which would enure to the competitive disadvantage of the party providing the information.
The record reflects that between October 25, 1996, and October 30, 1996, the protestant entered four shipments of disposable surgical gowns and drapes into the United States under subheading 4818.50.00 of the Harmonized Tariff Schedule of the United States (HTSUS) (gowns) and under subheading 4818.90.00, HTSUS (drapes and packs). Customs liquidated all four entries under subheading 6210.10.20, HTSUS (gowns), and under subheading 6307.90.60, HTSUS (drapes and packs).
The surgical gowns and drapes are imported and sold by the protestant for use by hospital and other medical facilities, primarily in surgical procedures. The products will be disposed of after one wearing. The gowns and drapes are packaged, imported and sold as individual articles and/or in packaged sets or "packs" which will be used together in a specific medical procedure.
The gowns are composed of a paper-synthetic fiber material called "Fabric 450". The material is a mixture of blue-green absorbent paper and a polyester fiber. Polyester bales are unbanded and placed in machines which loosen the fibers, then transfer the fibers to a combing machine, orienting the fibers as it feeds the fibers onto a belt which carriers the oriented fibers through the production process. Four thin webs of the combed fiber are formed on four separate belts, ultimately being superimposed before they are loosely hydroentangled by a water jet process directed from above the material. A few feet after the polyester fibers are entangled, forming a loose snow-white web, the paper material is rolled into position above the loose, wet polyester web, and the two materials are then subjected to a series of water jets, directed from above. The paper breaks and migrates throughout the polyester web, permeating the entire structure of the polyester.
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Following the hydroentanglement of the paper, the new material passes through a series of drying rollers, until the material is fully dried. It is trimmed and rolled onto large rolls and sent to a facility for a moisture repellant treatment process. The green paper element of the finished product permeates the product on all sides. The finished material is then subjected to a fluorohydrocarbon bath.
The protestant states that the Fabric 450 is manufactured in the United States and sent to Mexico where it is cut and assembled into surgical gowns and drapes.
Are the disposable gowns and drapes classifiable as paper products under subheading 4818.50.00, HTSUS (gowns), and subheading 4818.90.00, HTSUS (drapes and packs), or as textile articles under subheading 6210.10.20, HTSUS (gowns), and subheading 6307.90.60, HTSUS (drapes and packs).
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI’s will be applied.
In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN’s), which are not legally binding, but are recognized as the official interpretation of the Harmonized System at the international level. It is Customs practice to follow, whenever possible, the terms of the EN’s when interpreting the HTSUS.
Customs liquidated the surgical gowns under subheading 6210.10.20, HTSUS, which provides for garments made up of fabrics of heading 5602 and 5603 formed on a base of paper or covered or lined with paper. Classification of the drapes and packs was under subheading 6307.90.60, HTSUS, which provides for surgical drapes of fabric formed on a base of paper or covered or lined with paper.
The protestant claims that the Fabric 450 is classifiable as a paper rather than a textile because the paper pulp is the material comprising the chief weight (over 55 percent but less than 65 percent) and value of the product and imparts the essential characteristics that promote moisture resistance and affordability. Moreover, since gowns and drapes
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made of paper are specifically provided for in heading 4818, HTSUS, and there are no notes that exclude gowns “of paper and synthetic fibers” from the chapter, counsel for the protestant argues that the items are classifiable under GRI 1 in heading 4818, HTSUS.
For the reasons set forth below, we find that the Fabric 450 is not a paper product classifiable under the principles of GRI 1. It is a composite good consisting of paper and textile components and is classifiable under the principles of GRI 3.
The General EN’s to Chapter 48, cited by the counsel to support classification in heading 4818, HTSUS, read in part:
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). Underscore added, bold in original.
Counsel for the protestant argues that the above rule highlighted by underscoring "implicitly reflects the converse, that if the paper or pulp predominates by weight, as with the instant merchandise, the products are regarded as paper." Counsel claims this premise is consistent with Note 2(A), Section XI, HTSUS, and Additional U.S. Rule of Interpretation 1(d). Note 2(A), Section XI, HTSUS, reads:
Goods classifiable in Chapters 50 to 55 or headings 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.
When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration.
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Additionally, counsel points out that Additional U.S. of Interpretation Rule1 (d), HTSUS, expands this tenet to all goods containing textile materials, including those in Chapter 48. It states:
In the absence of special language or context which otherwise requires—
(d) the principles of section XI regarding mixtures of two or more textile materials shall apply to the classification of goods in any provision in which a textile material is named.
In HQ 951978, dated October 2, 1992, which affirmed HQ 086629, dated May 4, 1990, Customs addressed the language in the EN’s to Chapter 48 (“Where the textile fibers predominate by weight, the products are not regarded as paper and are classified as nonwovens (heading 56.03)”, in classifying a similar fabric known as “Sontara”. In that ruling, Customs stated:
This language does not mean that the percentage of textile fibers in this product is necessarily determinative of classification. Chapter 48 refers to the type of product where wood pulp and textile fibers are mixed in one slurry and then a paper or a nonwoven product is made from that slurry. "Sontara" is not made this way. This material consists of two layers, one of which is woodpulp, the other a polyester fiber batt. The two preexistent layers are then hydraulically entangled by a patented water jet process. One side of the "Sontara" is described as "paper rich", the other as "polyester rich." After the water jet process, the woodpulp and the polyester are intermingled but one side remains predominately woodpulp and the other side predominately polyester. Emphasis added.
Counsel argues that Customs analysis in the “Sontara” case is erroneous and, if applied to the 450 material, ignores the physical result of the manufacturing process, i.e., the formation of a solid web consisting of both paper and textile fibers throughout the web. The protestant states that the hydroentangling process is fundamentally distinct from the process in the "Sontara" rulings and that the 450 material is a "single" material formed by the production process, "notwithstanding the fact that the paper and polyester, just prior to the integration of the paper into the polyester web, are separate sheets or webs." Counsel further states that it is not the identity and condition of the fibers after the integration that is critical. After the integration process, the paper and polyester form a common web of fibers, not a layer, laminated or "paper-covered" product of heading 5603, HTSUS.
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We disagree with counsel that the Fabric 450 is a “single” material produced from the production process. In our opinion, the Fabric 450 is produced from a nonwoven material impregnated with paper. A nonwoven fabric is described in the EN’s to heading 5603, HTSUS, 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).
Paper is the term generally used to refer to matted or felt sheets of fibers formed on a fine wire screen from a paper pulp “slurry” (a “slurry” is also known as paper fibers suspended in water) which is then dried by pressing and finished by calendering. This is consistent with the EN’s to Chapter 48 which define paper as essentially consisting of “the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form.” Further support that paper is made from a paper pulp “slurry” comes from the EN’s to Chapter 48 which state that in the manufacturing of paper “[t]he pulp is prepared by blending if necessary, mixing with fillers, size, or colouring matter as required, and reduction to a suitable consistency by dilution in water and mechanical beating.”
On the other hand, a nonwoven fabric is a clothlike material made of fibers longer than those used in papermaking which, instead of being woven or knitted, is formed by felting on a fine mesh screen from an air or water suspension technique. While nonwoven fabrics can be made using principles and machinery associated with papermaking processes following the water suspension technique, one major difference among paper and nonwoven products is the way in which the fibers are bonded. In general, paper products are formed after passing the sheet of fibers between a series of drying cylinders/rolls. For nonwovens, the web structure is produced by bonding or interlocking fibers using one of three main generic manufacturing processes - mechanical, chemical and thermal. These processes are set forth in the EN’s to heading 5603, HTSUS.
In mechanical bonding, the nonwoven web is bonded by entangling the fibers through mechanical means such as needed punching, stitching, and spunlacing. Spunlacing is also known as hydroentangling. This process is not used in papermaking. See EN’s to Chapter 48, HTSUS, for examples of paper making processes. In this process, high-pressure water jets are used to entangle the fibers. Generally, the nonwoven web is laid on a perforated belt and is passed under high-pressure jets of water causing the fibers to entangle and bond tighter. The web may be impregnated with a binder in order to seal segments of the structure. Spunlaced fabrics are used for such things as dust cloths, wipes, medical gowns, medical dressing, and disposable cloth items.
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We note that the process described to produce the Fabric 450, as well as the “Sontara” fabric, is similar to the process used in the production of nonwovens by spunlacing. The only difference is that for these fabrics an additional layer of paper is feed into the process. A roll of thin paper sheet is introduced between the polyester web and the high-pressure jets of water. The paper sheet is disintegrated/dissolved/broken by the water jets and paper fibers are deposited inside the web structure. The process continues until enough paper fibers are laid to cover one side of the nonwoven web.
These paper fibers, after being dried, act as a binder and provide strength, as well as other properties, to the nonwoven material. The addition of the paper fibers is best described as an impregnation process to permeate the nonwoven with paper fibers by punching the fibers into the web and is consistent with the EN’s to heading 5603, HTSUS.
The EN’s to heading 5603, HTSUS, read, in part:
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.
Accordingly, we disagree with counsel that the Fabric 450 is a “single” material made by the technique described in the EN’s to Chapter 48 (i.e., from a slurry). Like the Sontara fabric, the fabric in question is a composite good consisting of textile and paper materials, which are prima facie, classifiable under separate headings. Accordingly, the fabric must be classified under a GRI 3 analysis. GRI 3 reads, in relevant part:
(a) 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 or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
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(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
Additionally, the EN’s to GRI 3(b) state that:
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
Like the fabric in the “Sontara” case, we find that both the textile and paper components possess essential characteristics and make significant contributions to the Fabric 450. The textile fibers provide durability, softness, bulk, absorbency and drapeability, and the paper fibers reinforce the fiber structure and provide tensile and tear properties, affordability and moisture resistance. In our opinion, the paper component does not so outweigh the textile contribution so that it clearly imparts the essential character.
Based on the above, we conclude that the Fabric 450 is not a paper product but rather a nonwoven spunlaced fabric which is impregnated with paper fibers, using the method described above which basically migrates the paper pulp fibers into the nonwoven.
Finally, we note the ruling cited by counsel, HQ 081945, dated January 29, 1990, which he claims directly supports his interpretation of the General EN’s to Chapter 48 that the classification of paper and textile products is based on chief weight. That ruling addressed three different styles of shoe covers, although we assume that counsel refers
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to style 4811. That style was made of two separate layers – one layer of a combination of textile and paper fibers (made from a slurry which was classified as a textile based on the fact that the textile fibers predominated by weight) and of a layer of paper. In that ruling, we stated:
It is Customs view that where wood pulp and textile fibers are combined, the material that predominated by weight will determine whether the resultant mixture is classifiable as paper or as a nonwoven textile fabric. Emphasis added.
This statement is consistent with the rationale set forth above, i.e., that paper of Chapter 48 is made from a paper pulp “slurry” whereby the pulp is prepared by blending if necessary, mixing with fillers, size, or coulouring matter as required, and reduction to a suitable consistency by dilution in water and mechanical beating.
We further note that in HQ 081945 the two layers were laminated together and classified as a composite good under the principles of GRI 3(c) in heading 6307, HTSUS, which provides for other made-up textile articles. Accordingly, we do not find this ruling persuasive and as recognized by counsel “the material in the shoe cover is not identical to the 450 material.”
Accordingly, the surgical gowns imported individually are classified under subheading 6210.10.2000, HTSUS, which provides for garments made up of fabrics of heading 5603, HTSUS, formed on a base of paper or covered or lined with paper. The drapes imported individually are classifiable as surgical drapes of fabrics formed on a base of paper or covered or lined with paper under subheading 6307.90.6000, HTSUS.
The gown and drape “packs” consist of at two articles which are, prima facie, classifiable in different headings and meet a particular need or carry out a specific activity, i.e., use during a surgical procedure. Accordingly, assuming the articles are also put up in a manner suitable for sale directly to users without repacking, they qualify as a set under GRI 3(b).
Under the same rationale set forth in HQ 086700, dated June 19, 1990, concerning the LAP Ultrapack (surgical pack), the items in this set each play a significant role in the surgical procedure and no single item imparts a unique character to the function of the set as a whole. Thus, the packs are classified under the principles of GRI 3(c) (the heading which occurs last in numerical order) in subheading 6307.90.6000, HTSUS.
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The Protest should be DENIED.
The surgical gowns imported individually are classified under subheading 6210.10.2000, HTSUS, which provides for garments made up of fabrics of heading 5603, HTSUS, formed on a base of paper or covered or lined with paper. The drapes imported individually and the “packs” are classifiable as surgical drapes of fabrics formed on a base of paper or covered or lined with paper under subheading 6307.90.6000, HTSUS. The items are dutiable at the Special Column One (MX) rate of the 1996 HTSUS.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division