OT:RR:CTF:FTM H254033 LOR/MJD
Mr. Lawrence Pilon
Hodes, Keating & Pilon
33 North Dearborn Street
Suite 2204
Chicago, IL 60602-3109
RE: Revocation of NY B89677 and modification of NY I88978; Classification of a stretcher cover and a gurney cover
Dear Mr. Pilon:
This is reference to New York Ruling Letter (“NY”) B89677, dated October 6, 1997, that U.S. Customs and Border Protection (“CBP”) issued to you on behalf of Medline Industries, Inc. NY B89677 concerns the tariff classification of a stretcher cover under subheading 6307.90.99 of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other.” After reviewing NY B89677, we have determined it to be in error. Therefore, for the reasons set forth below, we hereby revoke NY B89677.
In addition, we have also reviewed NY I88978, dated December 13, 2002, which involves the classification of substantially identical stretcher cover and gurney covers under subheading 6307.90.98, HTSUS, as well as other articles. As with NY B89677, we have determined that the tariff classification of the stretcher covers and gurney covers in this ruling is incorrect. Therefore, we are modifying NY I88978 with respect to the stretcher covers and the gurney covers.
Pursuant to section 625(c)(1), Tariff Act f 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on September 25, 2019, in Volume 53, Number 34, of the Customs Bulletin. One comment was received in response to this notice, opposing CBP’s revocation of NY B89677 and modification of NY I88978. This comment will be addressed below.
FACTS:
In NY B89677, CBP described the subject merchandise as follows:
The sample submitted is a stretcher cover made of nonwoven polypropylene fabric and measures 72” x 32”. The ends are folded over and sewn to form pockets to hold the cover on the stretcher.
In NY I88978, CBP described the subject merchandise as follows:
The stretcher cover is made of nonwoven spun bonded polypropylene fabric coated on one side with polyethylene. The ends are folded over and sewn to form pockets to hold the cover on the stretcher. It features textile strap handles.
The gurney cover is constructed of nonwoven spun bonded polypropylene fabric coated on one side with polyethylene. It features two web fabric straps with a plastic buckle and strap handles.
ISSUE:
Whether the disposable stretcher covers and disposable gurney covers are classified in heading 6302, HTSUS, as bed linen or in heading 6307, HTSUS, as other made up articles.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (“GRls”). GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRls 2 through 6 may be applied.
The 2019 HTSUS headings under consideration are as follows:
6302 Bed linen, table linen, toilet linen and kitchen linen:
* * * * *
6307 Other made up articles, including dress patterns:
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 63.02 states, in pertinent part:
These articles are usually made of cotton or flax, but sometimes also of hemp, ramie or man-made fibres, etc.; they are normally of a kind suitable for laundering. They include:
Bed linen, e.g., sheets, pillowcases, bolster cases, eiderdown cases and mattress covers.
EN 63.07 states, in pertinent part:
This heading covers made up articles of any textile materials which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
Heading 6302, HTSUS, is the provision for “bed linen.” The term “bed linen” is not defined in the tariff. As such, CBP may determine the scope of the term by relying upon its common and commercial meaning, and by consulting lexicographic sources. Medline Indus. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995). “[T]he meaning of a tariff term is presumed to be the same as its common or dictionary meaning.” Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988) (citations omitted), cert. denied, 488 U.S. 943, 109 S. Ct. 369, 102 L. Ed. 2d 358 (1988).
The term “bed linen” is defined in the Oxford English Dictionary (“OED”) as “[b]edclothes, esp. sheets and pillow-cases, originally of linen.” The term “bed-clothes” is defined as “[t]he sheets and blankets with which a bed is covered.” A “bed” is defined as “[t]he sleeping-place of a person or animal.” The term “bed” is further defined as “[a] permanent structure or arrangement for sleeping on, or for the sake of rest.” A “stretcher” is defined as “[A] framework of two poles with a long piece of canvas strung between them, used for carrying sick, injured, or dead people. Lastly, the OED defines the term “gurney” as “a wheeled stretcher used for transporting patients.” See 2012 OED located at www.oed.com.
In Medline, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) reversed the U.S. Court of International Trade (“CIT”) and determined that the CIT erred in “limiting the scope of heading 6302, HTSUS, to include, only those items found on all beds, thus excluding specialized items such as drawsheets which are only found on some beds.” The CAFC stated that, “[t]he correct definition of bed linens includes linen, cotton or other fabric articles for a bed.” See, Medline, 62 F.3d at 1410.
In accordance with the CAFC’s rationale in Medline, for purposes of heading 6302, HTSUS, the definition of “bed” is not limited to “all beds” and “bed linens” are not limited to linen, cotton or other fabric articles for a bed. The subject stretcher covers and gurney covers in this case, which are fitted sheets, are used to protect the stretchers and gurneys from dirt and other contaminants, and to provide comfort to the patient. Here, the subject disposable stretcher covers in NY B89677 and NY I88978 meet the CAFC’s definition of “bed linen,” set forth above. We further note that although the subject gurney covers in NY I88978 have straps, these articles are used to cover gurneys in the same way that stretcher covers are used to cover stretchers. Accordingly, the gurney covers also meet the CAFC’s definition in Medline for “other fabric articles for a bed.” Therefore, consistent with the court’s analysis in Medline, we find that the subject disposable stretcher covers and gurney covers are classified in heading 6302, HTSUS.
Moreover, CBP has classified other articles that are similar to the subject stretcher covers and gurney covers in subheading 6302.32.20, HTSUS. See, for example, NY C89339, dated July 20, 1998 (classifying a disposable fitted sheet made of 100 percent polypropylene); NY E80050, dated April 22, 1999 (classifying a “Disposable Bedding Pack for 911 Emergency Use”); NY I87600, dated November 15, 2002 (classifying a stretcher kit, composed of two disposable pillow cases, a top sheet, and a fitted stretcher sheet made of 100 percent polypropylene spunbond cotton); and, NY K85383, dated May 12, 2004 (classifying a “fitted sheet made of polypropylene non-woven fabric,” similar to the stretcher covers at issue in NY C89339).
One comment was received in opposition to the proposed ruling. The commenter argues that stretchers and gurneys are not beds, and, therefore, stretcher covers and gurney covers cannot be classified as bed linens under heading 6302, HTSUS. The commenter also argues that the proposed ruling misconstrues Medline and that Medline is irrelevant to this case. The commenter opines that stretcher covers and gurney covers do not meet the CAFC’s definition of bed linens in Medline because stretcher covers and gurney covers are not used on any beds. In addition, the commenter disagrees with this ruling’s assertion that because CAFC held that heading 6302, HTSUS, is not limited to “all beds,” “bed linens” are not limited to linen, cotton or other fabric articles for a bed.
In arguing that gurney covers and stretcher covers cannot be bed linens because gurneys and stretchers are not beds, the commenter discounts the fact that gurney covers and stretcher covers are fitted sheets, and fitted sheets have been consistently classified as bed linens under heading 6302, HTSUS. Heading 6302, HTSUS, is the only provision for fitted sheets and simply because the fitted sheets, in this case, go on gurneys and stretchers does not change what they are nor can it disqualify them from heading 6302, HTSUS. A fitted sheet is designed to protect the item it covers from contamination and provide a smooth surface for the person lying on it. It is immaterial to their classification as bed linens whether they are made for gurneys or stretchers. Accordingly, Medline is an appropriate case to cite to in this ruling because it resolves the fact that bed linens in heading 6302, HTSUS, do not have to go on all beds, they can go on some beds, and arguably on a single bed, what is of consequence is that what goes on the beds are bed linens, and fitted sheets are bed linens that can be made of a variety of materials such as nonwoven polypropylene as are the fitted sheets in this case. The commenter also asserts that the ruling cites to previous CBP decisions that do not refer to stretchers or gurneys. Once more, stretcher covers and gurney covers are fitted sheets, and so the cases mentioned in this ruling are appropriate because they refer to fitted sheets and similar bed linens. Furthermore, the commenter notes that the ruling does not cite to Headquarters Ruling Letter (“HQ”) H243928, dated June 22, 2017, that found that sleep sacks, primarily used for travel purposes in sleeping bags, hammocks, or independently, are not classifiable as bed linen in heading 6302, HTSUS. Citing to Medline, HQ H243928 determines that because the sleep sacks are certainly not found on all beds, nor can they be described as specialized items … which are only found on some beds, they cannot be classified under heading 6302, HTSUS, and are classified under heading 6307, HTSUS. However, the sleep sacks in HQ H243928 are different from gurney covers or stretcher covers. HQ H243928 states that “unlike the drawsheets in Medline, the sleep sacks are used to protect the consumer from the undersheets and mattresses, rather than to protect the undersheets and mattresses from the consumer. In other words, they are not “bed-clothes” designed to cover the bed, rather they are designed to protect the consumer.” Hence, because the sleep sacks at issue in HQ H243928 are not made for use as bed-clothes, which is the definition of bed linens, they cannot be classified under heading 6302, HTSUS, unlike the fitted sheets in this case whose purpose are to be used as bed clothes or bed linens, and are thus classifiable under heading 6302, HTSUS.
Therefore, based on the foregoing, it is our opinion that the stretcher covers and gurney covers, which we consider to be fitted sheets, are described in heading 6302, HTSUS. Inasmuch as the stretcher covers and gurney covers are more specifically described in heading, 6302, HTSUS, they are excluded from classification in heading 6307, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the stretcher covers are classified in heading 6302, HTSUS, specifically in subheading 6302.32.20, HTSUS, which provides for “Bed linen, table linen, toilet linen and kitchen linen: Other bed linen: Of man-made fibers: Other.” The 2019 rate of duty is 11.4% ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at
https://hts.usitc.gov/current.
NY B89677, dated October 6, 1997, is hereby revoked to classify the disposable stretcher covers in subheading 6302.32.20, HTSUS.
NY I88978, dated December 13, 2002, is hereby modified to classify the disposable stretcher covers and the disposable gurney covers in subheading 6302.32.20, HTSUS.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after it publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
CC: Ms. Nancy L. Rice
Kappler USA
115 Grimes Drive
Guntersville, AL 35976