CLA-2; CO:R:C:T 953499 ch
District Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607
RE: Application for further review of Protest No. 3901-93-
100145 under 19 U.S.C., section 1514(c)(2); bandage
rolls; retail sale; gauze; hospitals.
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the protest and our
decision follows.
FACTS:
The subject merchandise are Medline Bulkee II non-sterile
cotton bandage rolls imported in lots of 100 per cardboard case.
Each roll measures 4.5 inches x 147 inches. The importer has
submitted the Affidavit of William J. Sanders, President of the
Disposamed and Skin Care Division of Medline Industries,
Incorporated. Mr. Sanders states that each case of 100 rolls
will be sold, without re-packing, to various hospitals, nursing
homes and other institutional health care providers.
The Chicago District classified this merchandise under
subheading 5208.21.6090, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), and denied entry for failure to submit
the required visa.
ISSUE:
Whether non-sterile gauze bandage rolls imported in lots of
100 per package are classified under heading 3005, HTSUSA, which
provides for wadding, gauze, bandages and similar articles put up
in forms or packing for retail sale for medical, surgical, dental
or veterinary purposes; or heading 5208, HTSUSA, which provides
for woven cotton cheesecloth?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
Heading 3005 is found in Section VI of the tariff schedule.
Section VI, note 2, states that goods classifiable in heading
3005 by reason of being put up for retail sale are to be
classified in no other heading of the tariff schedule.
Therefore, if the instant bandage rolls are put up for retail
sale, they cannot be classified in heading 5208.
Heading 3005, HTSUSA, 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. (Emphasis
added).
The instant articles are bandage rolls, not impregnated or coated
with pharmaceutical substances. Hence, they are classifiable in
heading 3005 only if they are "put up in forms or packings for
retail sale for medical purposes."
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System constitute the official
interpretation of the nomenclature at the international level.
While not legally binding, they do represent the considered views
of classification experts of the Harmonized System Committee. It
has therefore been the practice of the Customs Service to follow,
whenever possible, the terms of the EN when interpreting the
HTSUSA.
The EN to heading 3005 state, in pertinent part:
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. (Emphasis
added).
The highlighted portions of this passage describe what is
necessary for bandage rolls to be "put up in forms or packings
for retail sale."
First, the merchandise must be for medical, surgical, dental
or veterinary purposes. The affidavit submitted by Mr. Sanders
indicates that the bandage rolls will be imported to health care
providers for medical purposes. We see no reason to dispute this
claim.
Second, the goods must be imported for sale to "users." The
EN provide that users include not only "private persons," but
"hospitals" as well. This extension is significant as entities
such as hospitals are likely to purchase supplies in greater
quantities than private persons. Hence, it appears that bulk
sales of wadding, gauze and bandages fall within the purview of
heading 3005. As the subject merchandise will be sold to
hospitals or similar institutions (i.e. other health care
providers), they are for sale to "users" as contemplated by the
EN.
Finally, the goods must be sold "directly without re-
packing." Medline asserts that it will sell the bandage rolls
directly to hospitals and nursing homes, without re-packing them
into smaller packages. However, Customs refused entry of the
rolls as packaged either because they will or could be re-
packaged after importation.
Based on the evidence before us we have no reason to doubt
the importer's good faith. As noted above, heading 3005 appears
to encompass bulk sales of bandage rolls. The merchandise is not
destined for a distributor or retail outlet. Rather, they are
sold directly to hospitals and nursing homes. It is likely that
these institutions would consume bandage rolls in quantities
large enough to require bulk purchases. Moreover, the fact that
it is possible to re-package these items into smaller units is
not evidence that the importer will do so. Hence, based on
Medline's representations, we conclude that the bandage rolls
will be sold directly without re-packaging to its customers.
As the bandage rolls as packaged are put up in forms or
packings for retail sale, they are classifiable in heading 3005,
HTSUSA. It follows, pursuant to Section VI, note 2, that these
articles cannot be classified elsewhere.
HOLDING:
Based on the foregoing discussion, this protest should be
granted in full. The subject merchandise is classifiable under
subheading 3005.90.5090, HTSUSA, which provides for wadding,
gauze, bandages and similar articles put up in forms or packings
for retail sale for medical, surgical, dental or veterinary
purposes: Other: Other, other. The applicable rate of duty is
7 percent ad valorem. A copy of this decision should be attached
to the CF 19 Notice of Action to satisfy the notice requirement
of section 174.30(a), Customs Regulations.
Sincerely,
John A. Durant, Director
Commercial Rulings Division