CLA-2 RR:TC:MM 958098 KCC
Mr. Joseph T. Smith, Jr.
Import Manager
Burlington Air Imports
P.O. Box 2884
San Francisco, California 94083-2884
RE: NY 846330 modified; "Rate-Mate" intravenous administration
set; 9018.90.75; parts and accessories of other electro-medical instruments; other medical instruments and
appliances; parts; accessories; EN 90.18; Travenol
Laboratories, Inc.; HRLs 085366, 085088, 087704, 955025,
955650 and 951857; Note 2(a) and (b), Chapter 90; GRI 1 and
3(a); relative specificity
Dear Mr. Smith:
This is in regards to New York Ruling (NY) 846330 dated
November 8, 1989, issued to you on behalf of Critikon, Inc., in
which the Area Director of Customs, New York Seaport, classified
the "Rate-Mate" intravenous administration set as other electro-medical instruments and appliances under subheading 9018.90.70,
Harmonized Tariff Schedule of the United States (HTSUS).
Pursuant to 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of
the proposed modification of NY 846330 was published on October
11, 1995, in the Customs Bulletin, Volume 29, Number 41. Three
comments were received in response to this notice.
FACTS:
In NY 846330 dated November 8, 1989, the Area Director of
Customs, New York Seaport, classified the "Rate-Mate" intravenous
administration set as other electro-medical instruments and
appliances under subheading 9018.90.70, HTSUS. NY 846330
described the "Rate-Mate" intravenous administration set as:
...similar to the standard set but contains in addition a
roller clamp and a cassette which fits into a "Rateminder V"
volumetric infusion pump (not being imported) which
electronically controls the rate of flow of the liquid to be
administered. The "Rate-Mate" administration set can be
used only with the infusion pump.
We note that subheading 9018.90.70, HTSUS, is unchanged but
has been renumbered for the 1995 HTSUS to subheading 9018.90.75,
HTSUS.
ISSUE:
Is the "Rate-Mate" intravenous administration set classified
under subheading 9018.90.75, HTSUS, as other electro-medical
instruments and appliances?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRIs). GRI 1,
HTSUS, states:
...for legal purposes, classification shall be determined
according to the terms of the headings and any relative
section or chapter notes and, provided such headings or
notes do not otherwise require, according to the following
provisions [the remaining GRIs].
The subheadings at issue are as follows:
9018.90 Instruments and appliances used in medical, surgical,
dental or veterinary sciences, including scintigraphic
apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories
thereof...Other instruments and appliances and parts
and accessories thereof...
9018.90.75 Other...Electro-medical instruments and
appliances and parts and accessories
thereof...Other...Other....
9018.90.80 Other...Other.
It is our opinion that the "Rate-Mate" intravenous
administration set is not classifiable as a part or accessory of
the pump, but as medical instruments and appliances under heading
9018, HTSUS.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be consulted. The ENs, although not dispositive nor legally
binding, provide a commentary on the scope of each heading of the
HTSUS and are generally indicative of the proper interpretation
of these headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128,
(August 23, 1989). EN 90.18, pgs. 1487-1493, states that:
This heading covers a very wide range of instruments and
appliances which, in the vast majority of cases, are used
only in professional practice (e.g., by doctors, surgeons,
dentists, veterinary surgeons, midwives), either to make a
diagnosis, to prevent or treat an illness or to operate,
etc.
EN 90.18 proceeds to list numerous exemplars of the type of
medical instruments and appliances which are classifiable under
heading 9018, HTSUS, including needles, surgical knives,
catheters, suction tubes, syringes, intratracheal tubes,
intubation tubes, blood transfusion apparatus. We believe that
the intravenous solution administration set is similar to the
type of medical instruments and apparatus listed in EN 90.18 and
it is a medical instrument and apparatus used by doctors to treat
an illness or operate. Moreover, intravenous solution
administration sets have been classified as medical instruments
or appliances. See, Travenol Laboratories, Inc., v. United
States, C.D. 4812 (1979), which classified an intravenous
solution administration sets under item 709.27, Tariff Schedules
of the United States (TSUS)(the precursor tariff provision to
subheading 9018.90.80, HTSUS), as other medical, dental, surgical
and veterinary instruments, etc.
In HRL 085088 dated March 12, 1990, we considered the
classification of an intravenous administration set, which
consisted of 49 inches of plastic tubing, with a drip chamber and
spike at one end, and a needle adapter with a protective covering
at the other end. The intravenous administration set was used
for the intravenous application of medication, blood serum,
glucose solution and sodium chloride solution. We determined
that the set was not classifiable as an electro-medical
instrument, nor a part or an accessory of an electro-medical
instrument, but as a medical instrument or appliance under
subheading 9018.90.80, HTSUS. In reaching this conclusion, we
stated as follows:
The I.V. Administration Set in question is not an electro-medical instrument or appliance, since it does not operate
by using electricity. Since the electrical functioning of a
dialysis machine does not depend upon the use of an I.V.
Administration Set, the I.V. Administration Set is not a
part of such a machine. Nor is the I.V. Administration Set
an accessory of an electro-medical instrument, since the set
does not supplement or assist the functioning of the
machine. An I.V. Administration Set is merely the
disposable conduit through which blood flows between the
patient and the machine. The set is used once and then
thrown away. Such a conveyance system is not a part or an
accessory.
Similarly, the "Rate-Mate" intravenous administration set
under consideration, is not an electro-medical instrument or
appliance. Moreover, even though designed for use with the
"Rateminder V" pump, it cannot be classified as a part of the
pump. Generally, a part of an article "must be an internal,
constituent or component part, without which the article to which
it is joined could not function." See, HRL 951857 dated August
14, 1992. The pump's function is to move liquid from a source
bag or bottle to a patient. Although, the pump cannot move
liquid without the set and a source bag or bottle with liquid
attached, it is our opinion that the pump is
a complete machine.
One commenter states that HRL 955650 dated March 14, 1994,
HRL 955025 dated April 29, 1994, and HRL 085366 dated December 4,
1989, support its position that a complete and separate article,
such as the intravenous solution administration sets, can be
classified as a part.
In HRL 955650, we considered the classification of bite-wing
tabs made of foamed polyurethane plastics, which are used to hold
X-ray film in place in the pertinent's mouth while an X-ray of
the teeth is taken. In HRL 955025, we considered the
classification of the Octostop II Pediatric Immobilization
System, which is principally used with X-ray apparatus to
maintain a child in a fixed position. Both the bite-wing tabs
and the immobilization system were classified according to Note
2(b), Chapter 90, HTSUS, under subheading 9022.90.60, HTSUS,
which provides for parts and accessories of apparatus based on
the use of X-rays.
The bite-wing tabs and immobilization system were not
classified as medical instruments or appliances under heading
9018, HTSUS, because we determined that neither was used "to make
a diagnosis, to prevent or treat an illness or to operate, etc."
Although peripherally related to such uses, the bite-wing tabs
and immobilization system are not similar in function to the
extensive list of devices found in EN 90.18. Moreover, because
the devices are not themselves "based on the use of X-rays," nor
similar to the devices listed in heading 9022, HTSUS, they could
not be classified as X-ray apparatus under heading 9022, HTSUS.
In HRL 085366, we classified a tube string subassembly of
the Vital Vue Irrigation, Suction, and Illumination System
Disposable Surgical Instrument ("Vital Vue"), as a part of
electro-surgical apparatus under subheading 9018.90.60, HTSUS.
The commenter contends that if we classify the intravenous
solution administration sets as a medical instrument or appliance
under heading 9018, HTSUS, we must similarly classify the tube
string subassembly as a medical instrument or appliance.
The tube string subassembly is a component part of the Vital
Vue surgical instrument, which is used with the Vital Vue System.
The complete, Vital Vue surgical instrument would be classified
as a medical instrument or appliance. The tube string
subassembly, however, is an assembly of the medical instrument or
appliance (as the intravenous solution administration set's
"cassette" is an assembly of the intravenous solution
administration set). Accordingly, it was properly classified as
a part thereof under subheading 9018.90.60, HTSUS.
To further the position that the pump is a complete machine
without the intravenous solution administration sets, we set
forth the following analogy in the proposed modification:
However, as a photographic camera is a complete machine
without the film, the pump is a complete machine
without the "Rate-Mate" intravenous administration set.
A camera's components, such as the shutter release,
film advance lever, rewind knob and viewfinder
eyepiece, function without the addition of the film.
Similarly, the components of the pump function without
the addition of the "Rate-Mate" intravenous
administration set. A photographic camera, when
imported without film, is classified according to GRI
1, HTSUS, under heading 9006, HTSUS (photographic
cameras), rather than as a GRI 2(a), HTSUS, "incomplete
or unfinished" articles. The pump, if imported without
the "Rate-Mate" intravenous administration set, would
be classified according to GRI 1, HTSUS, under heading
9018, HTSUS (medical apparatus). Therefore, it is our
opinion that the "Rate-Mate" intravenous administration
set is not classified as parts of the pumps under
subheading 9018.90.75, HTSUS.
Two comments stated that the above camera analogy does not
apply to the intravenous solution administration set. The
comments state that film is not classified as "parts" of cameras;
not because the film and camera are complete and separate
articles, but because the film is identified eo nomine in the
HTSUS. They further state that relative specificity doctrine set
forth in GRI 3(a), HTSUS, firmly establishes that an eo nomine
tariff provision for an article takes precedence over a "parts"
provision, but that a "parts" provision does not take precedence
over a "basket" provision. Therefore, the commenters contend
that since subheading 9018.90.80, HTSUS, is the basket provision
of heading 9018, HTSUS, the intravenous solution administration
set should be classified as a "part" under subheading 9018.90.75,
HTSUS. As discussed below, it is our opinion that we do not need
to resort to the doctrine of relative specificity in GRI 3(a),
HTSUS.
It is our opinion that the "Rate-Mate" intravenous
administration set is classified as an accessory to the pump, and
is classifiable under subheading 9018.90.75, HTSUS. The term
"accessory" is not defined in either the HTSUS or the ENs. An
accessory is generally an article which is not necessary to
enable the goods with which it is used to fulfill their intended
function. An accessory must be identifiable as being intended
solely or principally for use with a specific article.
Accessories are of secondary or subordinate importance, not
essential in and of themselves. They must, however, somehow
contribute to the effectiveness of the principal article (e.g.,
facilitate the use or handling of the principal article, widen
the range of its uses, or improve its operation.) See, HRL
087704 dated September 27, 1990, and HRL 951857.
As stated in HRL 085088, it is our opinion that disposable
solution administration sets which serve as a conduit through
which blood flows between the patient and the machine are medical
instruments or appliances in and of themselves and, therefore,
are classified under subheading 9018.90.80, HTSUS. Generally,
they are not classified as accessories of the pumps. However,
in this case the "Rate-Mate" intravenous administration set, by
its design does appear to facilitate the use of the pump.
Features such as the cassette help regulate the rate and flow of
liquid passing through the pump. Therefore, the "Rate-Mate"
intravenous administration set is also viewed as accessories to
the pump.
In this situation, where the "Rate-Mate" intravenous
administration set is classifiable as medical instruments and
apparatus and as accessories of pumps, Note 2, Chapter 90, HTSUS,
states that:
...parts and accessories for machines, apparatus,
instruments or articles of this chapter are to be classified
according to the following rules:
(a) Parts and accessories which are goods included in any
of the headings of this chapter or of chapter 84, 85 or
91 (other than heading 8485, 8548 or 9033) are in all
cases to be classified in their respective headings;
(b) Other parts and accessories, if suitable for use solely
or principally with a particular kind of machine,
instrument or apparatus, or with a number of machines,
instruments or apparatus of the same heading (including
a machine, instrument or apparatus of heading 9010,
9013 or 9031) are to be classified with the machines,
instruments or apparatus of that kind....
It is our position that pursuant to Note 2(a), Chapter 90,
HTSUS, as the "Rate-Mate" intravenous administration set is
classifiable as medical instruments and apparatus in heading
9018, HTSUS, it must be so classified, regardless of whether it
is also classifiable as accessories of pumps. Therefore,
pursuant to Note 2(a), Chapter 90, HTSUS, the "Rate-Mate"
intravenous administration set is classified under subheading
9018.90.80, HTSUS, as other medical instruments and appliances.
However, the comments contend that the doctrine of relative
specificity in GRI 3(a), HTSUS, establishes classification of the
intravenous solution administration set as an accessory under
subheading 9018.90.75, HTSUS. GRI 3, HTSUS, states
"[w]hen...goods are, prima facie, classifiable under two or more
headings, classification shall be effected as follows:
(a) The heading which provides the most specific
description shall be preferred to headings providing a
more general description..."
Thus, an eo nomine tariff provision for an article takes
precedence over an "accessories" provision, but that an
"accessories" provision does not take precedence over a "basket"
provision. Therefore, the commenters contend that since
subheading 9018.90.80, HTSUS, is the basket provision of heading
9018, HTSUS, the intravenous solution administration set should
be classified as an "accessory" under subheading 9018.90.75,
HTSUS.
It is our opinion that resorting to GRI 3(a), HTSUS, in this
situation is incorrect. GRI 1, HTSUS, states that "...for legal
purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes
and, provided such headings or notes do not otherwise require,
according to the following provisions [the remaining GRIs,
including GRI 3(a)]." Thus, classification is determined
according to the headings and the section or chapter notes, and
if the section or chapter notes do not otherwise require,
according to the remaining GRIs. In this case, Note 2, Chapter
90, directs classification of the intravenous solution
administration set such that we do not need to proceed to the
remaining GRIs.
Note 2(a), Chapter 90, HTSUS, states that accessories which
are goods included in any of the headings of chapter 90, 84, 85
or 91 are in all cases to be classified in their respective
headings. In this case, the intravenous solution administration
set is a good included in heading 9018, HTSUS, as medical
instruments and appliances. Heading 9018, HTSUS, also includes
the accessories of medical instruments and appliances. However,
this does not negate the use of Note 2(a), Chapter 90, HTSUS.
Note 2(a), Chapter 90, HTSUS, states that the classification of
the intravenous solution administration set proceeds under
heading 9018, HTSUS, as medical instruments and appliances.
Therefore, we proceed through the six-digit and eight-digit
classification as medical instruments and appliances to
classification under subheading 9018.90.80, HTSUS, as other
medical instruments and appliance. We do not proceed to Note
2(b), Chapter 90, HTSUS, or to GRI 3(a), HTSUS. Classification
of the intravenous solution administration set is made pursuant
to GRI 1, HTSUS, and Note 2(a), Chapter 90, HTSUS.
HOLDING:
The "Rate-Mate" intravenous administration set is classified
under subheading 9018.90.80, HTSUS, as other medical instruments
and appliances. Articles classified under this tariff provision
are dutiable at the Column 1 rate of 6.3% ad valorem.
EFFECT ON OTHER RULINGS:
NY 846330, issued November 8, 1989, is modified as set forth
above. In accordance with 19 U.S.C. 1625(c)(1), this ruling
will become effective 60 days after publication in the Customs
Bulletin. Publication of rulings or decisions pursuant to 19
U.S.C. 1625(c)(1) does not constitute a change of practice or
position in accordance with 177.10(c)(1), Customs Regulations
(19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division