CLA-2 CO:R:C:M 957022 DWS
Ms. Lynn S. Baker
Katten Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, IL 60661-3693
RE: Reconsideration of HQ 557669; "BiCart Column" Cartridges;
Sodium Bicarbonate; Dialysis Machines; GRI 5(b); HQs 082357;
Kores Manufacturing Inc. v. U.S.; 9018.90.75
Dear Ms. Baker:
This is in response to your letters of May 10 and October
31, 1994, on behalf of Cobe Laboratories Inc., requesting
reconsideration of HQ 557669, dated March 3, 1994, concerning the
classification of "BiCart Column" cartridges under the Harmonized
Tariff Schedule of the United States (HTSUS). Pursuant to
section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by
section 623 of Title VI (Customs Modernization) of the North
American Free Trade Agreement Implementation Act, Pub. L. 103-
182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625),
notice of the proposed revocation of HQ 557669 was published
December 21, 1994, in the Customs Bulletin, volume 28, Number 51.
The merchandise consists of "BiCart Column" cartridges,
designed for use solely with dialysis machines. The cartridges
are comprised of a specially shaped polypropylene cartridge
containing 650 grams of sodium bicarbonate powder. They are
imported in packages of ten units and are designed for one time
use only. When attached to a special holder affixed to the
kidney dialysis machine, the cartridge allows "on line"
production of the liquid bicarbonate concentrate required for
Healthy human kidneys produce bicarbonate, which neutralizes
the large quantities of acid produced in the body by cell
metabolism. Because persons with renal disease (kidney failure),
who require dialysis, are unable to naturally produce
bicarbonate, the chemical must be provided through dialysis
treatment. The dialysis solution is made up of an electrolyte
solution which approximates the concentrate of normal plasma.
Most often, the solution produced by the dialysis machine
contains five chemical compounds: sodium chloride, sodium
bicarbonate, calcium chloride, potassium chloride, and magnesium
chloride. Due to the tendency of the bicarbonate and the
remaining chemicals to react over time and form magnesium
carbonate or limestone, which clogs the dialysis machine, two
separate concentrates are used: sodium bicarbonate and acid
concentrate. A dual proportioning system contained in the
dialysis machine itself continuously mixes the two concentrates
as needed during the dialysis procedure to produce a constant
supply of free flowing dialysis solution.
Traditionally, bicarbonate concentrate was sold to hospitals
in two forms, dry powder or liquid concentrate. With dry powder,
the hospital is required to mix it with water to produce the
concentrate. Liquid concentrate is heavy and difficult to store.
Delivery of bicarbonate concentrate from the powder directly to
the dialysis machine helps eliminate the problems associated with
these other two forms. This process is achieved by the use of
the "BiCart Column" cartridges. Each cartridge snaps into a
special holder attached to the dialysis machine. When the
cartridge is placed in the special holder, water is drawn from
the dialysis machine through the cartridge to produce a saturated
sodium bicarbonate solution. The dialysis machine, through its
dual proportioning system, then mixes the solution with water and
the acid concentrate to produce the dialysis solution.
The subheadings under consideration are as follows:
9018.90.75: [i]nstruments and appliances used in
medical, surgical, dental or veterinary
sciences, . . . ; parts and accessories
thereof: [o]ther instruments and appliances and
parts and accessories thereof: [o]ther:
[electra-medical instruments and appliances and
parts and accessories thereof: [o]ther: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision is 4.2 percent ad valorem.
2836.30.00: [s]odium hydrogencarbonate (Sodium bicarbonate).
Goods classifiable under this provision receive duty-free
Whether the "BiCart Column" cartridges are classifiable
under subheading 9018.90.75, HTSUS, as parts of medical
instruments, or under subheading 2836.30.00, HTSUS, as sodium
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's).
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section chapter notes.
In HQ 557669, we held that the sodium bicarbonate cartridges
were classifiable under subheading 9018.90.75, HTSUS, as parts of
Sodium bicarbonate is specifically classifiable under
subheading 2836.30.00, HTSUS.
GRI 5(b) states that:
[s]ubject to the provisions of rule 5(a) above, packing
materials and packing containers entered with the goods
therein shall be classified with the goods if they are
of a kind normally used for packing such goods. However,
this provision does not apply when such packing materials or
packing containers are clearly suitable for repetitive use.
The cartridge themselves are merely containers for the
conveyance and storage of the sodium bicarbonate, even if they
are specially shaped in order to be incorporated in a dialysis
machine. Goods are almost always transported in some form of
container or package. However, even if that package is specially
shaped, it does not alter the classification of the good pursuant
to GRI 1.
As we stated in HQ 082357, dated November 29, 1989 [a Tariff
Schedules of the United States (TSUS) ruling concerning the
classification of toner cartridges]:
[r]ather than a part, the cartridge supplies fuel for the
copier, fuel which is as expendable as any other fuel. As
mentioned in T.D. 35151, a completed rifle does not
contemplate the cartridges used. So, too, the concept of
a photocopier would not necessarily include the toners. The
toner enables the machine to produce a printed image on
paper, it is just as complete without the toner.
The toner cartridge represents a minuscule, if not
infinitesimal, portion of the cost of the copier. The
cartridge is nothing more than a container for fuel which
must be constantly replenished.
The "BiCart Column" cartridges are not classifiable under
subheading 9018.90.75, HTSUS, as parts of medical instruments.
Whether an article is a part of another article depends on the
nature of the so-called "part" and its usefulness, function and
purpose in relation to the article in which it is designed to
serve. Kores Manufacturing Inc. V. U.S., 3 CIT 178, 179 (1982),
aff'd appeal No. 82-83 (C.A.F.C. 1983).
Counsel has stated that the cartridges are not essential to
the operation of the dialysis machine. In fact, the sodium
bicarbonate can be added through other, more traditional methods.
However, the process is much easier through the use of the
cartridges. Similar to the toner cartridge in HQ 082357, the
"BiCart Column" cartridges are nothing more than containers of a
chemical which must be constantly replenished. The dialysis
machine is a complete machine and operates as such with or
without the presence of a "BiCart Column" cartridge.
Therefore, in accordance with GRIs 1 and 5(b), the "BiCart
Column" cartridges are classifiable under subheading 2836.30.00,
The "BiCart Column" cartridges are classifiable under
subheading 2836.30.00, HTSUS, as sodium bicarbonate.
HQ 557669, dated March 3, 1994, is hereby revoked. In
accordance with section 625, this ruling will become effective 60
days after its publication in the Customs Bulletin. Publication
of rulings or decisions pursuant to section 625 does not
constitute a change of practice or position in accordance with
section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].
John Durant, Director
Commercial Rulings Division