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