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HQ 955849


May 31, 1994

CLA-2 CO:R:C:F 955849 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 3005.90.5090

District Director of Customs
1 East Bay Street
Savannah, Georgia 31401

RE: Decision on Application for Further Review of Protest No. 1704-93-100474, filed November 1, 1993, concerning the classification of absorbent pads.

Dear Sir:

This is a decision on a protest filed November 1, 1993, against your decision in the classification and liquidation of "dry tips," absorbent pads that were entered in May 1993.

FACTS:

At the time of entry, the protestant contended that the goods were classifiable in subheading 3005.90.1000, HTSUSA, the provision for "Wadding, gauze, bandages and similar articles... Coated or impregnated with pharmaceutical substances," dutiable at 2.4 percent ad valorem. However, Customs laboratory testing of samples did not indicate the presence of any pharmaceutical substances.

You classified the merchandise under subheading 3005.90.5090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for "Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices)...put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes: Other: Other, Other," dutiable at 7 percent ad valorem.

The protestant's current claim is that the goods should be classified in subheading 4823.90.7000, HTSUSA, the provision for "Other paper...cellulose wadding or webs of cellulose fibers: Other: Other: Other: Of cellulose wadding," dutiable at 3.6 percent ad valorem.

The "dry tips" are packaged for retail sale (fifty pieces per box) when imported. The sample boxes - containing fifty large (article no. 161100) and fifty small (article no. 161000) "dry tips" - and copies of advertising literature, indicate that "dry tips" absorb and retain many times their weight in moisture, which "keeps the parotid [salivary] gland in check for 15 minutes," allowing dentists and orthodontists to "work in confidence without the risk of saliva contamination." An unsaturated "dry tip" is flat and somewhat chevron-shaped, having a polyethylene film on one surface, a double-tricot nylon fabric on the opposite surface, and a middle layer of carboxymethyl cellulose absorbent. The user is directed to insert the "dry tip" point first toward the corner of the mouth, with the nylon mesh against the mucous membrane and the glossy surface toward the oral cavity. A "plaster" effect keeps the piece in place during treatment. Removal is accomplished by spraying water on the membrane side of the "dry tip."

ISSUE:

Whether the merchandise is properly classified in heading 4823, HTSUS, as cellulose wadding and webs of cellulose fibers, or in heading 3005, HTSUS, as wadding and similar articles put up in packings for retail sale for dental purposes.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Since GRI 1 requires that the classification of goods be determined according to the terms of the headings and any relative section or chapter notes, we turn to the legal notes of the tariff schedule. There are no pertinent legal notes to Chapter 30 (which covers pharmaceutical products). However, Chapter 30 falls within Section VI, HTSUS, which covers products of the chemical or allied industries. Note 2 to Section VI states that "[s]ubject to note 1 above [re classification of goods in headings not at issue in this case], goods classifiable in heading 3004, 3005...by reason of being put up...for retail sale are to be classified in those headings and in no other heading of the tariff schedule."

The EN to heading 3005, indicates that wadding and gauze for dressings (usually of absorbent cotton) and bandages, etc., that are not impregnated or coated with pharmaceutical substances, are also classified in this heading, provided they are exclusively intended (e.g., because of the labels affixed or special folding) for sale directly without re-packing, to users (private persons, hospitals, etc.) for medical, surgical, dental or veterinary purposes.

Chapter 48, HTSUS, covers paper, paperboard, and articles of the pulp of paper or paperboard. Note 1(a) to Chapter 48 states that "[t]his chapter does not cover: Articles of chapter 30." Note 10 to Chapter 48 states that "[h]eading 4823 applies, inter alia, to perforated paper or paperboard cards for Jacquard [a pattern loom for weaving elaborate designs] or similar machines and paper lace." The EN to heading 4823, indicates that the heading covers, among other products, cellulose wadding or webs or cellulose fibres, not covered by any of the previous headings of Chapter 48, nor excluded by Note 1.

The protestant cites to Headquarters Ruling Letter (HRL) 953990, dated August 2, 1993, and asserts that the "dry tips," like the goods pertinent to that HRL, do not conform to "the definitions set forth by the U.S. Customs Service for adhesive dressings and bandages." In HRL 953990 no such definitions were set forth. The limited attributes of the merchandise subject to that case were discussed, which led to a finding that the fabric "does not serve as a bandage," and was "not classifiable as a dressing." The protestant also submits that the sole function of "dry tips" is saliva absorption. However, saliva is seldom the sole fluid encountered and controlled in dentistry. Further, articles classifiable in heading 3005, HTSUS, are as well suited to absorb saliva as other fluids. We find that "dry tips" are classifiable in heading 3005, HTSUS.

It is our determination that the language and context of Note 2 to Section VI, HTSUS, as well as exclusionary Note 1(a) to Chapter 48, HTSUS, require the provision for absorbent articles packaged for retail sale for dental purposes to prevail over the less specific provision for cellulose wadding.

HOLDING:

The absorbent pads identified as "dry tips" are properly classified in subheading 3005.90.5090, HTSUSA, the provision for "Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices)...put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes: Other: Other, Other." The applicable duty rate is 7 percent ad valorem.

The protest should be denied in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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