HQ 0956806 - Classification of Laparotomy Sponges - United States International Trade Commision Rulings

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HQ 956806

November 1, 1994

CLA-2 CO:R:C:T 956806 GG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

James F. O'Hara, Esq.
Stein Shostak Shostak & O'Hara
3580 Wilshire Blvd., Suite 1240
Los Angeles, CA 90010-2597

RE: Classification of Laparotomy Sponges

Dear Mr. O'Hara:

This is in response to your July 19, 1994 request for a binding ruling on the tariff classification of laparotomy sponges imported by your client, Ulti-Med International, Inc.

FACTS:

The merchandise at issue is laparotomy sponges manufactured in China. The sponges are described as being composed of four layers of 100% cotton fabric, made from two 18" x 18" filler pieces and one 18" x 36" cover piece. The 18" x 36" cover piece is folded in half and the two filler layers are inserted. Our examination of a sample sponge revealed, however, that it was made from one large cotton fabric piece, which was folded in half and then in half again, forming four fabric layers.

An X-ray element made of barium sulfate, PVC and plasticizer is placed between the fabric folds in one corner of the sponge. The ends of a 100% cotton loop that extends outward from the sponge are positioned over the outside edge of the X-ray element. The laparotomy sponge is then machine sewn around the three open edges, halfway across the closed side, and down the center. The stitching secures not only the fabric layers but also the X-ray element and loop. All cut edges are turned prior to sewing so that no raw edges are exposed.

The finished laparotomy sponges are then folded, and in groups of five are either banded together or enclosed in blue CSR wrap. A radiation sterilization indicator is attached to the CSR packages. After being placed in poly-line cases containing 700 packages, the laparotomy sponges are then imported.

The laparotomy sponges are repackaged in plastic trays and sterilized in the United States.
ISSUE:

What is the proper classification of the laparotomy sponges?

LAW AND ANALYSIS:

Articles are classified under the Harmonized Tariff Schedule of the United States (HTSUSA) in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that articles are classifiable according to the terms of the headings and any relative section or chapter notes and, provided the headings or notes do not otherwise require, according to the remaining GRI's taken in order.

Heading 3005, HTSUSA, provides for, among other things, wadding, gauze, bandages and similar articles put up in forms or packing for retail sale for medical, surgical, dental or veterinary purposes. Specific reference is made to laparotomy sponges at the subheading level. Explanatory Note 30.05 of the Harmonized Commodity Description and Coding System Explanatory Notes states, in pertinent part, that:

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

Customs analyzed this Explanatory Note in Headquarters Ruling Letter (HRL) 952369, dated December 17, 1993, and concluded that articles cannot be classified under heading 3005, HTSUSA, if they are subjected to repacking prior to sale to users. The laparotomy sponges at issue are repackaged for sale to users after importation. Therefore, their classification under this heading would be in error.

The laparotomy sponges consist of cotton fabric and a strip of barium sulfate and plastic. GRI 2(b) directs that goods consisting of more than one material or substance are to be classified according to the principles of GRI 3. GRI 3(a) provides, among other things, that when two or more headings refer to part only of the materials or substances in a composite good, the headings are to be considered equally specific.

The barium strip, known as a radiopaque cord, is classifiable under heading 2833, HTSUSA. (See HRL 950769, dated January 23, 1992, and HRL 952369, classifying a radiopaque cord in subheading 2833.27.0000, HTSUSA). An examination of several provisions is necessary to determine the applicable heading for the cotton fabric.

Chapter 52 of the HTSUSA covers cotton. The General Explanatory Note to this Chapter states that in general, the Chapter covers cotton fibers at the various stages of their conversion from raw material to woven fabrics, and includes mixed textile materials classified as cotton. Cotton gauze sponges were classified as cotton woven fabric under heading 5208, HTSUSA, in HRL 952369. However, a distinction can be drawn between those particular cotton gauze sponges and the laparotomy sponges currently under consideration.

The cotton gauze sponges consisted of a 14 x 16 inch piece of plain woven cotton fabric with unfinished edges, which was folded six times, leaving only folded edges exposed. The possibility of classifying these sponges as made up textile articles was examined, and ultimately ruled out, in HRL 952369.

Section XI of the HTSUSA contains the classification provisions for textiles and textile articles. Note 7 to Section XI defines the expression "made up" for purposes of Section XI. "Made up" means, in pertinent part:

(a) Cut otherwise than into squares or rectangles;

(b) 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);

(c) 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 unravelling by whipping or by other simple means; or

(e) 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).

In rejecting the argument that the gauze sponges met the terms of Note 7(b), i.e., that they were produced in the finished state, Customs cited the General Explanatory Note for Section XI regarding Note 7:

[R]ectangular (including square) articles simply cut out from larger pieces without other working and not incorporating fringes formed by cutting dividing threads are not regarded as "produced in the finished state" within the meaning of this Note. The fact that these articles may be presented folded or put up in packings (e.g., for retail sale) does not affect their classification.

It was determined that simply cutting and folding the cotton cloth into a form in which it was recognizable and usable as a gauze sponge did not make the gauze sponges made up articles within the meaning of Note 7. Therefore, they were classified as cotton woven fabric of heading 5208, HTSUSA.

In contrast, the laparotomy sponges currently at issue do qualify as made up textile articles because they are assembled by sewing. They thus fall within the definition of "made up" provided by Note 7(e). Consequently, they are classifiable under heading 6307, HTSUSA.

Headings 2833 and 6307, HTSUSA are equally specific because they refer to part only of the materials of which the laparotomy sponges are composed. Therefore, GRI 3(b) is applicable.

GRI 3(b) provides that classification is to be determined by the material or component that imparts the essential character to the good. In this case, the textile component represents essential character. We base this decision on the fact that it is the fabric which absorbs body fluids and thus establishes the function of the sponge. The barium sulfate strip serves merely as a marker or identifier. This result follows that reached in HRL 952369, where the cotton woven fabric was found to be more significant than the barium strip. Therefore, classification of the laparotomy sponges is under heading 6307, HTSUSA.

HOLDING:

The laparotomy sponges are classifiable as other made up textile articles, other, other, other, under subheading 6307.90.9989, HTSUSA. The duty rate is 7% ad valorem. The sponges are not subject to a textile category.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant
Director, Commercial

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