The tariff classification of fenestrated surgical patient drapes from China.

N314513 October 1, 2020 CLA-2-39:OT:RR:NC:N4:415 CATEGORY: Classification TARIFF NO.: 3926.90.9985; 9903.88.15 Mr. Lawrence R. Pilon Rock Trade Law, LLC 134 North LaSalle Street Chicago, IL 60602 RE: The tariff classification of fenestrated surgical patient drapes from China. Dear Mr. Pilon: In your letter dated September 10, 2020, you requested a tariff classification ruling on behalf of your client, Welmed, Inc. The product under consideration is described as fenestrated surgical patient drapes. They are made from clear two mil polyethylene plastic sheeting. The drapes are disposable, intended for single-use, and measure approximately 24 inches by 30 inches. Each drape has a four-inch circular fenestration (opening) centered widthwise in the drape, 11 inches from one end lengthwise. A one-inch strip of medical-grade adhesive tape runs across the width of the drape, two inches from the end nearer the fenestration. They are designed to be used on a patient during surgery to isolate the surgical site, which is centered within the fenestration, from the rest of the patient’s body. The strip of medical grade adhesive tape serves to position and secure the drape to the patient’s body. The surgical procedure takes place on the patient’s body within and through the fenestration, while the drape protects the surgical site and the surrounding area from cross-contamination. You propose classification in heading 9018 of the Harmonized Tariff Schedule of the United States (HTSUS), as surgical devices. We disagree. In describing the general content and arrangement of Chapter 90, the Explanatory Note (EN) states in pertinent part that: "[t]his Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterised by their high finish and high precision." The EN lists several exceptions to the “high precision” rule, e.g., ordinary goggles and simple magnifying glasses. The surgical drapes are not included in these exceptions and merely consist of a piece of plastic sheeting, having an opening, and a strip of adhesive tape. Thus, we do not believe that the instant surgical drapes are characterized by high finish and high precision. Furthermore, these plastic drapes are used to cover the patient to isolate the surgical site from contamination during surgery, and the opening in the drapes is simply used to provide access to the surgical site. They are not used to diagnose a disease, to prevent or treat an illness, or to operate. As such, they do not rise to the level of medical or surgical instruments or appliances in heading 9018 for classification purposes. This conclusion is affirmed by the EN to heading 9619, HTSUS, which clarifies that in general, disposable surgical drapes are classified according to their constituent material. Additionally, CBP has consistently classified surgical or medical drapes based on their constituent material. Therefore, the subject surgical drapes are not correctly classified in heading 9018. The fenestrated surgical patient drapes would be considered articles of plastic, and as they are not provided for more specifically elsewhere, the applicable subheading will be 3926.90.9985, HTSUS, which provides for “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther: [o]ther.” The column one, general rate of duty is 5.3 percent ad valorem. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 3926.90.9985, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 3926.90.9985, HTSUS, listed above.   The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively. Duty rates are provided for your 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. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Kristopher Burton at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division