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HQ 959955




April 10, 1997

CLA-2 RR:TC:TE 959955 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Lawrence R. Pilon, Esq.
Hodes & Pilon
33 North Dearborn Street, Suite 2204
Chicago, ILL 60602-3109

RE: Classification of laparotomy sponges; Section XI, Note 7; heading 6307; heading 3005; made up articles

Dear Mr. Pilon:

This is in reply to your letter of October 28, 1996, on behalf of your client, International Medsurg Connection, Inc., requesting a ruling on the tariff classification of laparotomy sponges.

You submitted a sample of a laparotomy sponge for our examination.

FACTS:

Your client manufactures and imports medical and surgical supplies for use by health care providers such as hospitals, nursing homes, and medical clinics.

The laparotomy sponges your client intends to import are woven from 100 percent Indian-origin cotton gauze fabric. Each sponge consists of four fabric layers formed from one large piece of folded woven fabric. The folded fabric is sewn around all edges and down the middle in both directions. The sponges are imported in sizes 18" x 18", 12" x 12", 8" x 36" and 4" x 18". A four-inch barium sulfate monofilament is sewn into each sponge to facilitate X-ray detection. Some of the sponges have a seven-inch 100 percent cotton blue loop sewn into one corner, and a metal ring is attached to the end of some loops. You did not explain the function of the blue loop or metal ring.

Laparotomy sponges of equal size and style will be imported banded together in groups of five in a paper band. Some of the banded together groups will be "CSR" wrapped. They will be imported into the United States in a carton containing 600 sponges and sold directly to U.S. medical and surgical suppliers.

Furthermore, you state that the U.S. medical supply companies will package and sterilize the laparotomy sponges in the United States and sell them to U.S. hospitals and other health care providers. The sponges will be used exclusively by the staff of the hospitals and health care facilities.

You seek classification of the laparotomy sponges under heading 6307 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA ), as other made up articles.

ISSUE:

Are the laparotomy sponges classifiable under heading 3005, HTSUSA (wadding, gauze, bandages and similar articles) or under heading 6307, HTSUSA (other made up articles)?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in their appropriate order. Laparotomy sponges are specifically provided for in subheading 3005.90.5010, HTSUSA. That provision encompasses:

Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes: Other: Other: Laparotomy sponges.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes, which are not legally binding, but are recognized as the official interpretation of the Harmonized System at the international level. In this case, the Explanatory Note for heading 3005 clarifies the intent of the heading text. The Explanatory Note states:

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 the 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.

You concede that the laparotomy sponges in question do not qualify for classification under heading 3005, because they will be packaged and sterilized in the United States. Thus, they are not "put up in forms or packings for retail sale" upon importation into the United States.

As the gauze sponges do not meet the requirements for classification in heading 3005, we must look to alternative classifications. The laparotomy sponges are made of cotton woven fabric with a four-inch barium sulfate monofilament. Additionally, some sponges have a blue loop sewn into one corner. A small metal ring is attached to the end of some loops.

The barium sulfate strip is classifiable under heading 2833, HTSUSA (sulfates; alums; peroxosulfates (persulfates). See, Headquarters Ruling Letter (HQ) 956806, dated November 1, 1994 and the rulings cited in that case. Your letter did not provide us with sufficient information to definitively classify the metal ring and blue loop. However, the metal ring is probably classifiable under heading 7326, HTSUSA (other articles of iron or steel), heading 7616, HTSUSA (other articles of aluminum) or 7419, HTSUSA (other articles of brass), depending upon its composition. The blue loop may be classifiable under heading 5808, HTSUSA (braids in the piece).

The cotton gauze fabric consists of four fabric layers formed from one large piece of folded woven fabric. It is folded and sewn down the middle in both directions and the edges are sewn. Section XI provides for textiles and textile articles. Note 7 to Section XI states that for purposes of this section, the expression "made up" means:

(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;

(d) Cut to size and having undergone a process of drawn thread work;

(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); or

(f) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.

In this case, the laparotomy sponges satisfy the definition of "made up" provided by Note 7. They are assembled by sewing, hemmed so that the edges will not unravel, and are ready for use without [further] sewing. Consequently, they are classifiable under heading 6307.

GRI 2(b) directs that goods consisting of more than one material or substance, like the laparotomy sponges in this case, 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. Customs has long held that a cotton gauze sponge with a barium sulfate strip is a composite good. HQ 956806 and HQ 952369, dated December 17, 1993. Thus, the headings in question are equally specific and GRI 3(b) is applicable.

GRI 3(b) provides that classification is to be determined by the material or component which imparts the essential character to the good. Customs has also long held that it is the gauze fabric and not the barium strip which constitutes the essential character of a laparotomy sponge because the fabric serves the primary function - to absorb bodily fluids. The barium sulfate strip serves merely as a marker or identifier. HQ 956806 and HQ 952369. Accordingly, we agree with you that the laparotomy sponges in this case are classifiable under heading 6307, as other made up articles.

HOLDING:

The laparotomy sponges are classifiable under subheading 6307.90.9989, HTSUSA, which provides for "Other made up articles, including dress patterns: Other: Other: Other." They are dutiable at the general column rate of duty at 7 percent ad valorem.

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 importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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