CLA-2 RR:CTF:TCM 967980 tmf
Port Director
Customs and Border Protection
610 S. Canal Street
Room 306
Chicago, IL 60607
RE: Protest and Application for Further Review (AFR) 1601-04-100386
Dear Sir or Madam:
This is in reply to your correspondence forwarding the Application for Further Review of Protest (AFR) 1601-04-100386, which was filed by counsel representing BSN-JOBST, Inc. This protest determination is applicable only to the three sample styles at issue herein.
FACTS:
The protest and request for Application for Further Review (hereinafter “AFR”), which was timely filed on October 25, 2004, is against Customs and Border Protection's (CBP) classification and liquidation of three entries of bandages, entered October 27, 2003, November 3, 2003 and December 2, 2003, which were subsequently liquidated September 10, 2004, September 17, 2004 and October 15, 2004, respectively. CBP classified the merchandise in subheading 5906.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Rubberized textile fabrics, other than those of heading 5902: Adhesive tape of a width not exceeding 20 cm.”
The protestant asserts that the merchandise is classified in subheading 3005.10.5000, 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: Adhesive dressings and other articles having an adhesive layer: Other.”
The subject tapes have a zinc oxide adhesive layer, and are not coated or impregnated with pharmaceutical substances. The three styles of tape the Elastoplast® Tan Athletic Tape, the Lightplast® Pro Elastic Stretch Athletic Tape (white and black), and the Strappal® Latex-Free Rigid Strapping Tape are put in forms or packings for retail sale for medical purposes and have different uses. The Elastoplast is use to treat all conditions that limit movement (sprains and strains, sports injuries), correction of false position and posture, and compression for varicose veins and ulcers, and “strong support.” The Lightplast is used to treat sprains and strains, prophylactic use against sports injuries, and retention of dressings. The Strappal is indicated for rigid joint immobilization and to provide extra strong support in sprains and strains, and “prophylaxis of sports injuries.”
ISSUE:
What is the classification of the subject merchandise?
LAW AND ANALYSIS:
We have reviewed this protest and determined that AFR is warranted in this instance based Section 174.24(a) of the Customs and Border Protection (CBP) Regulations, which states that AFR is warranted where a Port’s action is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.
The issue in this protest is whether the subject bandages are classifiable in heading 5906 or 3005, HTSUSA. Although the HTSUSA does not define bandages, 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 (ICP) 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.
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 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." 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 accompanying marketing literature indicates that the subject merchandise is packed in separate quantities for direct retail sale to private healthcare entities for medical or surgical uses. We note the descriptive literature shows the merchandise as being put up (i.e., packed in “cases” containing a specified quantity of a particular catalog number). Although the packaging does not indicate that the subject tapes are for medical purposes, the protestant’s submission indicates that the goods are sold to hospitals, clinics, doctors and college and professional sports teams for the prevention and treatment of sprains, strains and other orthopedic injuries. See October 1, 2003 submission from the protestant to CBP. For an example of merchandise that has features which support their use for medical or surgical purposes, see Headquarters Ruling Letter 966637, dated October 23, 2003.
Based on our review of the protestant’s submission, we find that the subject tapes meet the requirements of heading 3005, HTSUSA, and are classifiable under subheading 3005.10.5000, HTSUSA, which provides for “wadding, gauze, bandages and similar articles put up in forms or packings for retail sale for medical purposes: Adhesive dressings and other articles having an adhesive layer: Other.” In accordance with Section VI, Note 2, which provides "… goods classifiable in…3005…by reason of being put up in measured doses or for retail sale are to be classified in [that] heading [ ] and in no other heading of the tariff schedule", we need not entertain classification within Chapter 59, HTSUSA.
HOLDING:
The three styles of bandages, identified as the Elastoplast® Tan Athletic Tape; the Lightplast® Pro Elastic Stretch Athletic Tape (white and black), and Strappal® Latex-Free Rigid Strapping Tape are classified in subheading 3005.10.5000, 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: Adhesive dressings and other articles having an adhesive layer: Other.” The general column one duty rate at the time of entry was FREE.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commerce and Trade Facilitation Division