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August 15, 2011
TARIFF NO.: 3919.90.5060
Mr. Jay Mittleman
P.O. Box 659508
San Antonio, TX 78265-9508
RE: The tariff classification of a self-adhesive drape from Mexico
Dear Mr. Mittleman:
In your letter dated June 29, 2011, you requested a tariff classification ruling. A sample and descriptive literature were included with your letter.
The product is identified as a self-adhesive therapy drape. The drape is used with Vacuum Assisted Closure (V.A.C.) therapy apparatus to facilitate the protection and treatment of wounds. V.A.C. therapy is typically used by medical professionals in the management of severe wounds or incisions and uses an electric suction pump with a storage container to assist in the removal of wound fluids and in keeping the wound from opening. A V.A.C. therapy system dressing kit generally consists of a foam plastic dressing to be placed directly over the wound, a self-adhesive plastic sheet called a therapy drape for holding the foam dressing in place, and tubing and connectors to secure to the suction pump. You are requesting a ruling on therapy drapes imported separately from the other components, in sterilized packages. Item KCI-60515 (M6275009/10) is a package containing 10 therapy drapes. Item KCI-60566 (M6275097/5) is a package containing 5 therapy drapes.
You first propose classification in subheading 9018.90.75, Harmonized Tariff Schedule of the United States (HTSUS), which includes parts and accessories of “other” electro-medical instruments and appliances. However, these adhesive sheets stick to the patient’s skin primarily to hold in place for a day or two the foam plastic dressing that the V.A.C. draws exuded fluids from. It also restricts the airflow to the underside of the dressing. Its function is thus quite similar to the adhesive tape used with gauze dressings. Before use, the protective layer, which is not externally adhesive, must be removed, a hole must be cut in the middle (for the tube from the V.A.C. to be able to pump from the dressing), and it must be at least cut down to size, usually by a large percent, by, at minimum, cutting off the non-transparent border or, as indicated by the instruction manual, cut into smaller pieces when necessary to better fit body contours, etc., again similar to the use of adhesive tape. Although the imports are commercially dedicated for use in the broader activity of wound vacuuming, they are better described as materials than as parts or accessories of the V.A.C. See Court of Appeals for the Federal Circuit 98-1043, regarding the classification of blood oxygenating thread in Chapter 54, and 01-1049, regarding the distinction between parts of devices and items used in the broader activity.
However, even if we agreed that that they were parts or accessories, identifiable as suitable for use solely or principally as parts of the V.A.C. devices, they would not be classifiable in subheading 9018.90.7590. Tariff classification under the HTSUS is governed by the principles set forth in the General Rules of Interpretation and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The General Rules of Interpretation and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. Additional U.S Rule of Interpretation 1(c) states that in the absence of special language or context which otherwise requires, a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part or accessory. Even if the therapy drape is considered to be a part or accessory of instruments and appliances used in medical and surgical sciences, it is specifically provided for as a pressure sensitive sheet of heading 3919 of the HTSUS, and, based on Additional U.S. Rule of Interpretation 1(c), that specific provision prevails. See Headquarters rulings 965968, dated December 12, 2002, and HQ 967233, dated February 18, 2005, for a discussion of this.
You also suggest classification in subheading 3005.10.5000, HTSUS, as wadding, gauze, bandages and similar articles put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes…adhesive dressings and other articles having an adhesive layer, other. However, the self adhesive sheet is designed for use exclusively with V.A.C. wound therapy appliances and has no use as a dressing outside the confines of that system. The dressings are not designed to be applied or left in place when the V.A.C. therapy device is not active. They have no function without the other components of the system, including the foam pad, the tube, the monitor and the canister. They are single-use disposable components of the V.A.C. therapy system and do not strictly meet the parameters of heading 3005.
The applicable subheading for the self-adhesive plastic therapy drapes will be 3919.90.5060, HTSUS, which provides for self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls…other…other. The rate of duty will be 5.8 percent ad valorem. The rate of duty will be 5.8 percent ad valorem.
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 on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Joan Mazzola at (646) 733-3023.
Robert B. Swierupski
National Commodity Specialist Division