CLA-02 RR:CR:SM 561819 BLS
Jennifer F. Kessinger, Esq.
Katten Muchin Zavis
525 West Monroe Street
Chicago, IL 60661-3693
RE: Applicability of U.S. Note 2(b), Subchapter II, Chapter 98, HTSUS, to
surgical disposable apparel; country of origin; 19 U.S.C. 1304
Dear Ms. Kessinger:
This is in reference to your letter dated June 29, 2000, on behalf of Allegiance Healthcare Corporation (“Allegiance”), requesting a ruling that certain disposable apparel used in surgical applications is entitled to duty-free treatment under U.S. Note 2(b), Subchapter II, Chapter 98, Harmonized Tariff Schedule of the United States (HTSUS), upon importation. We regret the delay in responding.
FACTS:
The items consist of disposable stockinettes, patient and equipment drapes, bouffant headwear, head and facial hair covers, and shoe covers. These items are intended for use in surgical applications with the exception of certain head covers, which are intended for use in laboratories, clean rooms and other controlled environments.
Stockinettes
Stockinettes are disposable garments designed for use in hospital operating rooms. The stockinette covers the foot and leg, up to and including the thigh, and is used to keep a patient’s legs and feet warm and to assist circulation during surgical procedures. The stockinette consists of two tubular lengths of material sewn together at the bottom to form a stocking-like product. The outer tube is made from a thermoplastic elastomer identified as “Kraton,” and the inner lining tube is made from polyester knit fabric. The materials are
made in the U.S. and then sent to the Dominican Republic where they are cut to length and assembled by sewing into the finished stockinettes.
2
Drapes
The drapes are disposable articles used either to cover patients or equipment. The patient drapes are made from “Optima” fabric, which consists of a base layer of “Sontara” fabric, a nonwoven fabric consisting of a paper base and textile fibers. The equipment drapes are made of polyethylene laminated to a wet lay mixture of cellulose and a nonwoven polyethylene film. In both cases, the materials are made in the U.S. and then sent to the Dominican Republic where the materials are cut to shape and assembled into the finished drapes.
Headwear
The bouffant headwear is disposable and used in surgical applications. It consists of an elasticized circle designed to completely cover the hair. The headwear is similar in shape and style to a shower cap. Depending on the particular item, the surgical use bouffant headwear is made of one of three materials: (1) polypropylene; (2) polyester; or (3) rayon. The polypropylene bouffant headwear is the least expensive and most used. The polyester bouffant headwear is the most expensive and least used. The rayon bouffant headwear is of moderate expense and use. All of the industrial use bouffant headwear is made of polypropylene. In all cases, the materials used to make the headwear are made in the U.S. and then sent to the Dominican Republic where the materials are cut to shape and assembled into the finished bouffant headwear.
Head and Facial Hair Covers
The head and facial hair covers are used either in surgical or industrial applications. They are made of a mixture of two materials: polypropylene and polyester. The material used to make these articles is made in the U.S. and then sent to the Dominican Republic where the material is cut to shape and assembled into the finished head and facial hair covers. The “Celebration Print Cap” is a nurses’ cap with ties at the base of the head. Similarly, the “Easy-Tie Surgeon’s Cap” covers the head and ties in the back at the base of the head. The “Comfort Hood”, the “Surgeon’s Hood with ties”, the “Pullover Hood and Beard Cover” and the “Hood and Sideburn Cover” all cover the head down through the neck.
3
Shoe Covers
The shoe covers are used in surgical applications. They are made of either polypropylene (“Dura-Fit” shoe covers) or a wet lay material combination of cellulose and polyester (“Assure” shoe covers). The materials are made in
the U.S. and then sent to the Dominican Republic where the materials are cut to shape and assembled into the finished shoe covers.
ISSUES:
1) Whether the subject articles are entitled to duty-free treatment under U.S. Note 2(b), subchapter II, Chapter 98, HTSUS.
2) What are the country of origin marking requirements for the imported articles?
LAW AND ANALYSIS:
Section 222 of the Customs and Trade Act of 1990, P.L. 101- 382) amended U.S. Note 2, subchapter II, Chapter 98, HTSUS ("Note 2(b)"), to provide for duty-free treatment of articles other than certain specified products, which are assembled or processed in a Caribbean Basis Initiative beneficiary country (BC) wholly of fabricated components or ingredients (except water) of U.S. origin.
Specifically, Note 2(b) provides as follows:
(b) No article (except a textile article, apparel article, or petroleum, or any
product derived from petroleum, provided for in heading 2709 or
2710) may be treated as a foreign article, or as subject to duty, if-
(i) the article is--
assembled or processed in whole of fabricated components
that are a product of the United States, or
processed in whole of ingredients (other than water) that are a
product of the United States, in a beneficiary country; and
(ii) neither the fabricated components, materials or ingredients, after
exportation from the United States, nor the article itself, before
4
importation into the United States, enters the commerce of any foreign
country other than a beneficiary country.
As used in this paragraph, the term "beneficiary country" means a country listed in General Note 7(a), HTSUS. The Dominican Republic is a designated BC under this provision.
Although Note 2(b)(i)(A) and (B) are separated by the word "or", it is our opinion that Congress did not intend to preclude duty-free treatment under this provision to an article which is created in a BC both by assembling and processing U.S. fabricated components and by processing U.S. ingredients.
To qualify for Note 2(b) duty-free treatment, an eligible article must be assembled or processed in a BC entirely of components or ingredients that are a "product of the U.S." You state that all of the materials exported to the Dominican Republic and used in the production of the described surgical apparel are of U.S. origin.
Note 2(b) enumerates categories of products that are excluded from duty-free treatment under this provision: textile articles; apparel articles; petroleum; and certain products derived from petroleum. In this regard, for purposes of Note 2(b), Customs has held that "textile" and "apparel" articles are articles classified in provisions of the HTSUS which include a textile category number, i.e., are subject to textile agreements. See T.D. 91-88, dated October 18, 1991. Accordingly, in order to determine whether the described articles are subject to textile agreements, we must ascertain their tariff classification.
Stockinettes
It appears that the stockinettes are classifiable under subheading 3926.20.9050, HTSUS, which provides for other articles of apparel of plastic. This provision does not include a textile category number.
Drapes
In our opinion, the surgical drapes of “Optima” fabric are properly classifiable under subheading 6307.90.60, HTSUS, which provides for “Other made up articles including dress patterns: Other, Surgical drapes, of fabric
5
formed on a base of paper or covered or lined with paper: Other.” See HRL 087142 dated May 22, 1990, where Customs held that disposable overhead
table covers made of Sontara were classifiable under this subheading. Although we cannot classify the “equipment drapes” without a sample, we are satisfied that neither of the two types of surgical drapes are classifiable under a provision which includes a textile category number.
Bouffant Headwear
Although the submission does not so indicate, we will assume that the materials used in the bouffant headwear, which may be polypropylene, polyester or rayon, are nonwoven. In NY Ruling Letter D88522 dated March 11, 1999, Customs considered the classification of a disposable bouffant cap used in the medical industry. This cap was made from spunbonded polypropylene, which is a nonwoven textile fabric. The bouffant cap is described as resembling a shower cap with elastic at the opening. In that case, Customs found that the disposable bouffant caps were classifiable under subheading 6505.90.8015, HTSUS, which provides for “Hats and other headgear, knitted or crocheted, or made from lace, felt or other textile fabric, in the piece (but not in strips), whether or not lined or trimmed; hair-nets of any material, whether or not lined or trimmed: Other: Of man-made fibers: Other: Not in part of braid: Nonwoven disposable headgear without peaks or visors.” We believe that the subject bouffant headwear, if produced from nonwoven materials, is similarly classifiable under this subheading, which does not include a textile category number.
Head and Facial Hair Covers
Assuming that the polypropylene and polyester materials that are used to produce the articles covered under this category are nonwoven, it appears that the headwear (consisting of a cap or hood that covers the head and ties in the back at the base of the head), that may also cover a beard is classifiable under subheading 6505.90.8015, HTSUS. See NY E82610 dated June 16, 1999, which dealt with similar items (nonwoven disposable surgeon’s headwear).
The beard covers appear to be classifiable under HTSUS subheading 6307.90.9989, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” Our determination in this regard assumes that the described “beard covers” cover only the beard. See, e.g., NY B87292 dated July 16, 1997.
6
With respect to the article described as the “Hood and Sideburn Cover”, we require a sample as we are without sufficient information to determine the classification of this article.
Accordingly, with the exception of the “Hood and Sideburn Cover”, the described articles are classified under provisions which do not include a textile category number, and thus are not considered textile or apparel articles.
Shoe Covers
Assuming the shoe covers are disposable and of flimsy material, or lack applied soles, they are properly classifiable under subheading 6307.90.9989, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” As this provision does not include a textile category number, the articles classifiable therein are not considered textile or apparel articles.
In regard to the operations performed in the Dominican Republic, we believe that the assembly and processing of the U.S. materials, which consist of cutting to shape, stitching the components together, and assembling the articles, are encompassed by the operations specified in Note 2(b).
Country of Origin Marking
With regard to the country of origin marking requirements for articles, which are eligible for duty-free treatment under Note 2(b), Customs Headquarters issued instructions to Customs field offices in Headquarters telex 9264071 dated September 28, 1990. The following paragraph on marking appears in the telex:
Since the language of this provision [section 222] prohibits us from
treating these articles as foreign, there appears to be no basis for
requiring that the article be marked with the Caribbean country of
processing or assembly. If so desired, however, they may be marked
"assembled in (name of CBI country) of U.S. components" or other
similar wording. Whether or not the articles can be marked as
products of the United States must be decided by the Federal Trade
Commission (FTC). Until further instructions are issued, marking
requirements should be limited to these guidelines.
7
HOLDING:
1) On the basis of the information submitted, and to the extent provided above, the disposable stockinettes, drapes, headwear, head and facial covers, and shoe covers cut to shape and assembled in the Dominican Republic wholly from materials of U.S. origin are entitled to duty-free treatment under Note 2(b), upon compliance with the imported directly requirement under Note 2(b) and the documentation requirement set forth in Headquarters telex 9264071 dated September 28, 1990.
2) As there is insufficient information to classify the “Hood and Sideburn Cover”, we cannot determine whether this article is subject to textile agreements. Therefore, we are unable to rule as to the applicability of Note 2(b) to the “Hood and Sideburn Cover.”
3) As the imported articles (except as specified above) qualify for duty-free treatment under Note 2(b) treatment, they are excepted from the country of origin marking requirements.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer.
Sincerely,
John Durant, Director
Director, Commercial Rulings Division