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HQ 967852





December 5, 2005

CLA-2 RR:TCM:CTF 967852 tmf

CATEGORY: CLASSIFICATION

TARIFF NO.: 3005.90.90

Thomas J. Kovarcik, Esq.
590 Madison Avenue, 21st Floor
New York, NY 10022

RE: tariff classification of elastic bandages

Dear Mr. Kovarcik:

This letter is in reply to your correspondence of March 26, 2003, as well as your supplemental letter of May 30, 2003, in which you request a binding ruling, on behalf of your client, Elastic Corporation of America (“ECA”), on the classification of certain bandages. Samples of the merchandise at issue were received. This ruling is limited to the samples submitted for classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

You state in your letter that the subject merchandise will consist of low-compression, elastic retention bandages used to hold wound dressings in place. Sales literatures that you submit advertise the bandages for “wound care.”

The submitted samples are 3 inches in width. You state that the samples which are submitted are packed in their corrugated shipping cartons and that all of that packing will be done in China. You state that your client’s customers will receive the bandages packed in that form.

The samples were submitted to laboratory analysis. The three samples are: Sample A, Sample B and Sample C, all of which are a warp knit fabric of mali construction. Such constructions are considered stitch bonded. Each sample will be produced in 5 yard lengths. The sample edges of both ends of this product have been prevented from unraveling by an application of a plastic binder that is identified as an aqueous polymer. Sample A is composed of 79.3 percent filament polyester and 20.7 percent elastic monofilament. While the laboratory was unable to identify the type of elastic yarn, the inquirer’s correspondence states that it is rubber. The sample weighs 31.4 grams and measures 7.4 centimeters in length. Two metal clips are packed with each bandage to hold the bandage on after it is wrapped around the injured area. The product will be packed 10 to a box and then 5 boxes to a case.

Sample B is composed of 39.9% filament polyester, 28.3% staple polyester, 25.9% cotton and 5.9% elastomeric strip. The strip measures less than 5 millimeters in diameter and meets the dimensional requirements to be considered a synthetic textile strip. You state that the strip is spandex. Sample B weighs 35.3 grams and the sample is 7.7 centimeters (approximately 3 inches) in width. The other end of the bandage has a strip of hook and loop fastening material sewn to it to facilitate its attachment to the injured area. The “elastic bandages” will be packed 12 to a box and then 6 boxes to a case.

Sample C is composed of 31.6% filament polyester, 31.9% staple polyester, 28.8% cotton and 7.7% elastic monofilament that measures less than 1 millimeter in cross section. Although the laboratory was unable to definitively identify the elastic monofilament, you state that it is rubber. The subject sample weighs 42.4 grams and is 7.6 centimeters in width. The other end of the bandage has a strip of hook and loop fastening material sewn to it to facilitate its attachment to the injured area. The “elastic bandages” will be packed 10 to a box and then 5 boxes to a case.

Each of the boxes is labeled with the size of the bandage, their identity as elastic bandages as well as the distributor. You state that the bandages will be marketed and sold to hospitals and physicians directly without repacking. The subject bandages are non-sterile, not made of wadding or gauze and not coated with pharmaceutical substances.

ISSUE:

What is the classification of the subject merchandise?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings.

Heading 3005, HTSUSA, provides for “[w]adding, 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.”

The HTSUSA does not define bandages, however, CBP has defined a bandage as a piece of material applied to a body part to make compression, absorb drainage, prevent motion, retain surgical dressing, or lend support to a wound. See New York Ruling (NY) I84715, dated August 8, 2002. See also Informed Compliance Publication on “Wadding, Gauze, Bandages & Similar Articles (HTSUS 3005),” April 2000, reviewed without changes, January 2004. In contrast, items that exclusively lend support to body parts are not classifiable in heading 3005, HTSUSA. These items do not immobilize body parts, act as compresses, or treat wounds.

Heading 3005, HTSUSA, is further segregable by two types of wadding, gauze, bandages and similar articles, namely, those impregnated or coated with pharmaceutical substances and those put up in forms for retail sale. Inasmuch as the subject bandages are not impregnated or coated with pharmaceutical substances we need only consider whether the samples are put up for retail sale.

The EN to heading 3005, HTSUSA, states that “[w]adding 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 state the subject merchandise is exclusively intended for direct sale without re-packing to users (hospitals) for the purpose of holding a wound in place. See HQ 953499, which states, the term “users” include hospitals as well. In fact, you provide advertisement material which shows the merchandise grouped with other products under the caption “traditional wound care.”

As the subject merchandise meets the requirements of heading 3005, HTSUSA, they are classifiable under subheading 3005.90.5090, HTSUSA, which provides for, among other things, bandages put up in forms or packings for retail sale for medical purposes.

HOLDING:

Samples A, B and C are classified under subheading 3005.90.5090, HTSUSA, which provides for “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, Other.” The general column one rate of duty is Free.

Sincerely,

Gail Hamill, Chief
Tariff Classification and Marking Branch

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