OT:RR:CTF:FTM H326140 TSM
Center Director
Apparel, Footwear and Textiles
Center of Excellence and Expertise
U.S. Customs and Border Protection
797 S. Zaragosa Rd.
El Paso, TX 79907
Attn: Goachim Mele, Import Specialist
RE: Internal Advice Request; Tariff Classification of Surgical Table Drapes
Dear Center Director,
This is in response to the internal advice request, dated July 11, 2022, initiated by GRI-Alleset, Inc., (“GRI-Alleset” or “Importer”), concerning the tariff classification of surgical table drapes imported from China.
FACTS:
The merchandise at issue consists of disposable surgical table drapes, designed to cover operating tables during surgical procedures and create a sterile barrier to prevent contamination of instruments and other supplies. The surgical drapes at issue are made of a combination of 30% spunbond/melt blown/spunbond (“SMS”) and 70% polyethylene (“PE”) film. Specifically, the drapes are constructed of SMS nonwoven dyed blue fabric, either laminated or glued in the center of a larger piece of polyethylene PE dyed blue film. The SMS fabric is composed of three layers of nonwoven textile fibers thermally bonded together: a spunbonded polypropylene filament fiber front and back layer; and a melt blown polypropylene filament fiber middle layer. The surgical drapes are imported in folded, non-sterile rectangles ready for use, in several sizes: 70 inches by 110 inches, 60 inches by 90 inches, 50 inches by 90 inches, 44 inches by 78 inches, 60 inches by 75 inches, 44 inches by 90 inches, and 44 inches by 44 inches.
The production of surgical table drapes utilizes two types of lamination equipment to bond the SMS nonwoven reinforcement material to the PE film. The first method utilizes “cast” lamination equipment to press the SMS nonwoven into the “hot” PE film which creates a terminal bond between the two materials. The second method utilizes “glue” lamination equipment; the equipment sprays glue across the SMS non-woven material and then presses the SMS nonwoven material onto the PE film. Once a complete roll of the combined materials is produced, the roll is moved to a slitting table, and the surgical table drapes are “slit” or cut from the roll, folded, and then packed into plastic case liners. The slit edges are clean cut and do not undergo any other processing, such as sewing, rolling, hemming, etc.
A sample disposable surgical table drape was sent to a U.S. Customs and Border Protection Laboratory for testing. The results, reported in Laboratory Report number NY20221295, dated January 20, 2023, show in relevant part that the subject merchandise is composed of a nonwoven fabric impregnated, coated, covered, or laminated with a polyethylene type compact plastic material. A sample disposable surgical table drape was also examined by this office.
ISSUE:
What is the tariff classification of the disposable surgical table drapes at issue?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is determined in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The HTSUS provisions under review are as follows:
3921 Other plates, sheets, film, foil and strip, of plastics
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5603 Nonwovens, whether or not impregnated, coated, covered or laminated
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6307 Other made up articles, including dress patterns
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Note 1(h) to Section XI provides in relevant part as follows:
This section does not cover:
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(h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39
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Note 7 to Section XI provides:
For the purposes of this section, the expression “made up” means:
Cut otherwise than into squares or rectangles;
Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means;
Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;
Cut to size and having undergone a process of drawn thread work;
Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or
Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
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Note 1 to Chapter 63 states that:
Subchapter 1 applies only to made up articles, of any textile fabric.
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Note 2 to Chapter 39 provides in relevant part:
This chapter does not cover:
(p) Goods of section XI (textiles and textile articles)
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Note 10 to Chapter 39 provides:
In headings 3920 and 3921, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
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Note 3 to Chapter 56 provides:
Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).
Heading 5603 also includes nonwovens in which plastics or rubber forms the bonding substance.
Headings 5602 and 5603 do not, however, cover:
Felt impregnated, coated, covered or laminated with plastics or rubber, containing 50 percent or less by weight of textile material or felt completely embedded in plastics or rubber (chapter 39 or 40);
Nonwovens, either completely embedded in plastics or rubber, or entirely coated or covered on both sides with such materials, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39 or 40); or
Plates, sheets or strip of cellular plastics or cellular rubber combined with felt or nonwovens, where the textile material is present merely for reinforcing purposes (chapter 39 or 40).
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Note 1 to Chapter 59 provides:
Except where the context otherwise requires, for the purposes of this chapter the expression “textile fabrics” applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006.
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The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
EN 10 to Chapter 39 provides:
In headings 39.20 and 39.21, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
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General EN to Chapter 39, provides:
Plates, sheets, film, foil and strip of heading 39.20 or 39.21
The expression “plates, sheets, film, foil and strip”, used in headings 39.20 and 39.21 is defined in Note 10 to the Chapter.
Such plates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square), are generally classified in headings 39.18, 39.19 or 39.22 to 39.26.
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Plastics and textile combinations
Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1 (h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.
The following products are also covered by this Chapter:
Felt impregnated, coated, covered or laminated with plastics, containing 50% or less by weight of textile material or felt completely embedded in plastics;
Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour;
Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 °C and 30 °C;
Plates, sheets and strip of cellular plastics combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, where the textile is present merely or reinforcing purposes.
In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, such as pile fabrics, tulle and lace and textile products of heading 58.11, are regarded as having a function beyond that of mere reinforcement.
Plates, sheets and strip of cellular plastics combined with textile fabric on both faces, whatever the nature of the fabric, are excluded from this Chapter (generally heading 56.02, 56.03 or 59.03).
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EN to Chapter 63 provides as follows:
Sub Chapter I applies only to made up articles, of any textile fabric.
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General EN to Chapter 63 provides in relevant part as follows:
This Chapter includes:
Under headings 63.01 to 63.07 (sub Chapter I) made up textile articles of any textile fabric (woven or knitted fabric, felt, nonwovens, etc.) which are not more specifically described in other Chapters of Section XI or elsewhere in the Nomenclature. (The expression “made up textile articles” means articles made up in the sense defined in Note 7 to Section XI.
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EN to Heading 39.21 provides, in pertinent part:
This heading covers plates, sheets, film, foil and strip, of plastics, other than those of heading 39.18, 39.19 or 39.20 or of Chapter 54. It therefore covers only cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials. (For the classification of plates, etc. combined with other materials, see the General Explanatory Note.)
According to Note 10 to this Chapter, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip and to blocks of regular geometric shape, whether or not printed or otherwise surface worked (for example, polished, embossed, coloured, merely curved or corrugated), uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
Plates, sheets, etc., whether or not surface worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square) are generally classified as articles of headings 39.18, 39.19 or 39.22 to 39.26.
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EN to Heading 56.03 provides, in pertinent 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.
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In view of the fact that the surgical drapes at issue consist of a combination of textile and plastic materials, we must first determine whether they are classified in Chapter 39, HTSUS. In this regard, we note that the EN to Chapter 39 provides in relevant part that the following categories of plastics and textile products are classified in Chapter 39: (1) felt impregnated, coated, covered or laminated with plastics; (2) textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with plastics that can be seen with the naked eye; (3) textile fabrics that are coated or laminated with plastics and cannot be bent manually around a cylinder of 7 mm in diameter; and (4) plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes. The first three categories of products are not descriptive of the surgical drapes at issue, because the drapes are not constructed of: felt impregnated, coated, covered or laminated with plastics; textile fabrics completely embedded in or entirely coated with plastics on both sides; or textile fabrics coated or laminated with plastics that cannot be bent manually around a cylinder. The fourth category covers plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes. In this regard, we note that, consistent with CBP laboratory report number NY20221295, dated January 20, 2023, the plastic portion of the surgical drapes at issue consists of compact, not cellular, plastics. However, plates, sheets and strip of compact plastics are not classified in Chapter 39. Accordingly, we conclude that the surgical drapes at issue are not described in the EN to Chapter 39, and are also not classified in Chapter 39, HTSUS.
The EN to Chapter 39 also provides in relevant part that the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56, and Note 2 to Chapter 59. Note 1(h) to Section XI provides that this section does not cover woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39. As discussed above, the surgical drapes at issue are not classified in Chapter 39. Therefore, Note 1(h) to Section XI does not exclude them from classification in Section XI.
Note 3 to Chapter 56 provides in relevant part that headings 5602 and 5603 cover felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular). In this regard, we note that heading 5602, HTSUS, is not applicable, because it provides for “[f]elt, whether or not impregnated, coated, covered or laminated,” while the textile portion of the surgical drapes at issue consists of nonwoven fabric material. With regard to heading 5603, HTSUS, for further guidance we refer to EN 56.03, which provides in relevant part that nonwovens covered on one or both surfaces with fabric or with sheets of any other material are classified in heading 5603 only if they derive their essential character from the nonwoven. Upon review, we find that the essential character of the surgical drapes at issue is not derived from the nonwoven. Our inspection of the sample drape confirmed that the nonwoven portion is extremely thin, which would hamper its ability to absorb fluids. The function of the nonwoven portion is simply to separate the patient from the drapes’ polyethylene portion. In contrast, the polyethylene portion functions by creating the sterile field, which is essential to the nature of the drapes. Therefore, we find that the surgical drapes at issue derive their essential character from the polyethylene portion and not the nonwoven portion. Accordingly, the surgical drapes are not classified in heading 5603, HTSUS.
As discussed above, the classification of plastics and textile combinations is also governed by Note 2 to Chapter 59. However, it should first be noted that Note 1 to Chapter 59 provides in relevant part that “for the purposes of this chapter the expression ‘textile fabrics’ applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806.” Because the textile portion of the surgical drapes at issue consists of nonwoven fabric, we find that the drapes are not classified in Chapter 59, HTSUS. Accordingly, consideration of Note 2 to Chapter 59 is not necessary.
Upon further consideration, we find that the surgical drapes at issue are classified in Chapter 63, HTSUS, because they are not provided for in any other Chapter. Consistent with the General EN to Chapter 63, this Chapter includes textile articles of any textile fabric, which are not more specifically described elsewhere in the Nomenclature. Moreover, the surgical drapes at issue are also made up within the meaning of Note 7(b) to Section XI, which provides that the expression “made up” means “produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working.” Therefore, the surgical drapes are classified in heading 6307, HTSUS, and specifically in subheading 6307.90.6800, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Surgical drapes: Other: Spunlaced or bonded fiber fabric disposable surgical drapes of man-made fibers.” See NY N254836, dated July 17, 2014, and NY N238164, dated February 19, 2013 (classifying surgical drapes consisting of nonwoven polypropylene fabrics and polyethylene film in subheading 6307.90.6800, HTSUSA).
HOLDING:
By application of GRI 1 and 6, the surgical drapes are classified in heading 6307, HTSUS, and specifically in subheading 6307.90.6800, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Surgical drapes: Other: Spunlaced or bonded fiber fabric disposable surgical drapes of man-made fibers.” The 2023 column one, general rate of duty is Free.
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 on the internet at https://hts.usitc.gov/current.
You are to mail this decision to the requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division