CLA-RR:CR:GC 967233 IOR
Mr. Craig Lewis, Esq.
Hogan & Hartson LLP
555 Thirteenth St, NW
Washington DC 20004-1109
RE: StethocapTM with antimicrobial; NY K83122 and NY K83786 affirmed
Dear Mr. Lewis:
This letter is in response to your May 21, 2004 request for reconsideration, on behalf of your client The Buzz Group LLC (Buzz Group), of New York Ruling Letters (NY) K83122, dated February 20, 2004, and K83786, dated March 24, 2004, issued to another party, on behalf of your client, by the Director, National Commodity Specialist Division, New York, with respect to the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a StethocapTM and a StethocapTM with antimicrobial. Our decision follows a September 15, 2004 teleconference between you and your client, and staff of the Office of Regulations and Rulings, General Classification Branch, and receipt of an additional submission on behalf of Buzz Group, dated September 24, 2004. We have found both NY K83122 and K83786 to be correct. We grant the request in your September 24, 2004 submission, that certain information pertaining to the quantity and cost of the antimicrobial for each StethocapTM with antimicrobial, be treated as confidential.
FACTS:
In NY K83122, Customs and Border Protection (“CBP”) wrote, in relevant part:
The submitted sample, designated as StethocapTM, consists of a blister pack containing two, circular, plastic caps, each measuring 2" in diameter. Each cap bears the name of a prescription medication on its outer surface, and has been treated with an antimicrobial preparation containing silver as the active ingredient. The cap is designed to be snapped onto the diaphragm of a standard manual stethoscope, prior to auscultating the patient, to prevent the transmission of microorganisms - and the risk of infection - from the diaphragm to the patient. Disposal and replacement of the cap is recommended after 90 days of use. You state in your letter that drug companies will use the subject product as a "giveaway" to promote their products.
The StethocapTM with antimicrobial was classified under subheading 3808.90.7000, HTSUS, which provides for “[i]nsecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers: Other: Other: Other: Containing an inorganic substance.”
In NY K83786, CBP wrote, in relevant part:
The two sample Stethocaps are as described in New York Ruling Letter K83122-238, issued to you on February 20, 2004, except that there is no inscription on it and that you indicate that it was not treated with an antimicrobial agent.
The StethocapTM without antimicrobial was classified under subheading 9018.90.8000, HTSUS, which provides for “[i]nstruments 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: Other: Other.”
You have described to us in the teleconference that the StethocapTM without antimicrobial is intended to be a hygienic device, used as a barrier between the bell of the stethoscope and a patient’s skin, that can be used for a period of 90 days, and that the StethocapTM with or without antimicrobial are intended to be used in the same setting, but the StethocapTM with antimicrobial has the added feature of the antimicrobial. In your September 24, 2004 submission, you assert that the antimicrobial comprises a minimal weight and cost of the StethocapTM with antimicrobial. In your September 24, 2004 submission, p. 9, you assert that the key features of the StethocapTM with antimicrobial is that first, “it creates a good physical barrier between the patient’s skin and those parts of the stethoscope that can harbor bacteria – i.e., the permanent stethoscope diaphragm and the rim that secures the diaphragm to the stethoscope – without compromising the audio functions of the stethoscope,” and second, “the StethocapTM is both cheap and easy to remove and, therefore, highly disposable.” You assert that these two core functions can, and are, achieved without the addition of an antimicrobial treatment to the plastic. Further, on p. 11, you state that the StethocapTM with antimicrobial “is designed for a singular purpose; to be used as an accessory to a stethoscope to prevent the accumulation of bacteria on the permanent diaphragm and under the rim of the stethoscope so as to limit transmission of microorganisms from stethoscope to patient,” and “this function is substantially achieved without the presence of an antimicrobial.” In your May 21, 2004 reconsideration request, the end-use for which the StethocapTM was designed was stated to be “to provide a clean surface on the diaphragm of a stethoscope to prevent the transmission of microorganisms from the diaphragm to a patient.”
You have provided us with the packaging for the StethocapTM with antimicrobial. The instructions for use are the only text on the packaging pertaining to the StethocapTM, and they state as follows:
Built-in silver-based antimicrobial helps reduce the growth of damaging bacteria on the surface of the product. For best results, we recommend replacing after 90 days of use.
You state that you do not have any packaging for the StethocapTM without antimicrobial, and have indicated that none had been imported as of the time of the September 15, 2004 teleconference.
A website, describing a Stethocap, http://www.stethocap.com, describes the article as a “tool for the prevention of the spread of microorganisms through the stethoscope,” and explains its use as follows:
Stethocap is a snap on and easy to dispose plastic. Just snap it on to the diaphragm when using the stethoscope and dispose the Snap-On in the regular garbage after use.
This website appears to be from the year 2000, and does not describe a stethoscope diaphragm cover with antimicrobial. The website also refers to the “Stethocap” as a “disposable diaphragm.”
Research into stethoscope diaphragm covers indicates that for covers not treated with any kind of antimicrobial, disposal after use is recommended. The only disposable stethoscope cover on the market not treated with an antimicrobial that we could locate, consists of what appears to be a thin, flat, round adhesive cover for the diaphragm. It is stated to operate as a barrier against cross-contamination, by containing contaminants on the adhesive cover instead of on the chestpiece. We have not been provided with any evidence that the StethocapTM without antimicrobial is marketed in any way. References made to cleaning the stethoscope with alcohol indicate that such cleaning is insufficient protection against contamination, and that healthcare providers have insufficient time to clean the stethoscope between patients. Regarding other types and brands of stethoscope covers impregnated with antimicrobial compounds, they are stated to suppress the growth and migration of bacteria and mold to minimize surface contamination, and reduce the spreading of bacteria from patient to stethoscope and stethoscope to patient. The covers are also frequently referred to as “diaphragms.”
ISSUE:
What is the proper tariff classification for the StethocapTM and the StethocapTM with antimicrobial?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS subheadings under consideration are as follows:
Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers):
Other:
Other:
Other:
Containing an inorganic substance……………….
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:
Other:
Percussion hammers, stethoscopes and parts of stethoscopes………………..
Other…………………………………..
We find that the StethocapTM with antimicrobial meets the terms of heading 3808, HTSUS, which provides for “[I]nsecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up …as…articles.” The imported merchandise consists of an article impregnated with an antimicrobial which destroys microorganisms, as does a disinfectant. However, the article at issue destroys microorganisms that come into contact with the StethocapTM itself, as opposed to having to be physically wiped or sprayed onto the microorganisms. It acts as a disinfectant or similar product and is put up as an article.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 38.08 states that the heading covers “a range of products…intended to destroy pathogenic germs….” The EN further states that the subject products can be classified in the heading “when they are put up in the form of articles.” Exemplars of such articles are “sulphur-treated bands, wicks and candles…, fly-papers…, grease bands for fruit trees…, papers impregnated with salicylic acid for preserving jams, papers or small wooden sticks coated with lindane and acting by combustion, etc.” “Disinfectants” are described as “agents which destroy or irreversibly inactivate undesirable bacteria, viruses or other micro-organisms, generally on inanimate objects.” Examples of the use of “disinfectants” includes cleaning walls in hospitals or sterilizing instruments.
You take the position that the StethocapTM with antimicrobial is a composite product whose essential character is as a disposable accessory to a medical device, and not as an antimicrobial. The EN to 38.08 states that the heading excludes preparations “covered by more specific headings of the Nomenclature, or having subsidiary disinfecting, insecticidal, etc., properties,” and disinfectant soap is given as an example. In this case, from the evidence available, the primary purpose of the StethocapTM with antimicrobial, is as a disinfectant of the StethocapTM itself. The evidence available does not support the conclusion that the antimicrobial property of the StethocapTM with antimicrobial is merely subsidiary to a primary purpose.
You have represented the purpose of both types of StethocapTM variously:
To be used as a barrier between the bell of the stethoscope and a patient’s skin, to prevent the accumulation of bacteria on the permanent diaphragm and under the rim of the stethoscope, so as to limit transmission of microorganisms from stethoscope to patient.
To provide a clean surface on the diaphragm of a stethoscope to prevent the transmission of microorganisms from the diaphragm to a patient.
The first purpose is to protect the stethoscope itself from bacteria and microorganisms. The second purpose is to provide a surface free of bacteria or microorganisms on the diaphragm of the stethoscope. We find that the first purpose stated is inconsistent with the literature available about stethoscope covers, and is inconsistent with the packaging information for the StethocapTM with antimicrobial. If, as asserted by you, both types of StethocapTM can be used for 90 days, the second described purpose above can only be accomplished by the StethocapTM with antimicrobial. The information on the “Stethocap” website indicates that the “Stethocap” (which is not represented as having been treated with an antimicrobial) should be disposed of after use, therefore it cannot be used for ninety days and accomplish the second purpose. The packaging for the StethocapTM with antimicrobial, indicates that the antimicrobial reduces the growth of bacteria on the StethocapTM itself, thereby providing a clean diaphragm surface, and preventing the transmission of microorganisms to a patient.
The literature in general regarding the diaphragm covers indicates that the purpose of the covers with antimicrobials is to suppress the growth and migration of bacteria and mold to minimize surface contamination and reduce the spreading of bacteria from patient to stethoscope and stethoscope to patient. Contrary to your assertion, the evidence indicates that the primary purpose of the stethoscope cover with antimicrobial is not as a barrier between the permanent portions of the stethoscope and the patient’s skin, but is to provide a clean stethoscope surface, thereby minimizing the transmission of microorganisms.
In NY J86441, dated July 10, 2003, a silver based antimicrobial was classified under subheading 3808.90.70, HTSUS. The silver based antimicrobial was substantially similar to the one with which the StethocapTM is impregnated. The classification in J86441 is consistent with our finding that the antimicrobial character of the StethocapTM with antimicrobial is classifiable in heading 3808, HTSUS, as a disinfectant or similar product.
You cite as examples other items which have antimicrobial or disinfecting properties, but have been nevertheless classified in headings other than 3808, HTSUS. You cite to, NY I88352, dated December 6, 2002 (pertaining to surgical drapes, some of which were antimicrobial), NY B89595, dated September 26, 1997 (pertaining to first aid dressings for burns treated with an antimicrobial), NY 883006, dated March 11, 1993 (pertaining to deodorizer with antimicrobial properties, designed for use in vacuum cleaners), HQ 964237, dated May 22, 2002 (pertaining to a cooler with a molded plastic compartment treated with an antimicrobial), and HQ 964449, dated January 14, 2002 (pertaining to a cooler with a molded plastic compartment treated with an antimicrobial). In the cited rulings, in all instances the antimicrobial property of the item at issue was subsidiary to a primary purpose. For example, with respect to the coolers, the primary purpose is to be used to transport food or beverages and keep them hot or cold.
On the basis that stethoscope covers impregnated with antimicrobial compounds are intended to provide an uncontaminated stethoscope surface and suppress the growth and migration of bacteria and mold for ninety days, we conclude that the StethocapTM with antimicrobial is described in heading 3808, HTSUS, specifically in subheading 3808.90.70, HTSUS, which provides for “[i]nsecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers: Other: Other: Other: Containing an inorganic substance.”
You disagree that the StethocapTM with antimicrobial is even potentially classifiable under heading 3808, HTSUS, on the basis that the antimicrobial agent is de minimis, and therefore may be ignored for purposes of classification, and that the antimicrobial does not alter the essential character of the StethocapTM without antimicrobial. We first address the argument that the antimicrobial agent is de minimis. The principle, de minimis non curat lex ("the law does not care for trifles") may be applied to determinations under the customs laws (see, e.g., Alcan Aluminum Corp. v. United States, 165 F.3d 898 (Fed. Cir. 1999), and the cases cited therein). The commentary on the rule of de minimis in Customs Law & Administration, by Ruth F. Sturm (3rd Ed., 1995, §51.13) states, in part:
An ingredient or component may or may not be disregarded for tariff purposes, not necessarily because of the quantity present, but on the basis of varying circumstances, including the purpose of Congress and whether or not the amount of the material has changed the nature of the article or its salability. ...
Materials added for transportation purposes or for the mechanical purpose of holding ingredients together have been disregarded, but not those deliberately added to change or enhance the product. [Among other cases cited for this proposition is Northam Warren Corp. v. United States, 60 CCPA 117, C.A.D. 1092, 475 F.2d 647 (1973), in which the Court affirmed a Customs Court decision that a very small amount (0.15%) of a coal tar derivative could not be ignored under the de minimis rule because "the coal tar derivative ingredient performed a function affecting the appearance of a product whose appearance is part of its functional role ..." (60 CCPA at 121)]. ...
In this case, the antimicrobial is an intentionally added feature which enhances the product by extending the period of time the StethocapTM can reduce the growth of bacteria, and changes the StethocapTM from a diaphragm cover that should be either disposed of after use or cleaned after each use, to one that can be used for 90 days to maintain an uncontaminated stethoscope surface without cleaning after each use. While you state that the StethocapTM without antimicrobial can be used for 90 days, that is inconsistent with the information we have obtained independently. The information we have obtained indicates that in order to maintain an uncontaminated stethoscope surface, stethoscope diaphragm covers without an antimicrobial should be disposed of after use. Other than your unsubstantiated assertions, we do not find any information indicating that the reuse of a stethoscope diaphragm cover without antimicrobial serves any purpose whatsoever. Your statement that the StethocapTM “is designed to be used as an accessory to a stethoscope to prevent the accumulation of bacteria on the permanent diaphragm and under the rim of the stethoscope so as to limit transmission of microorganisms from stethoscope to patient,” does not reflect the purpose of a stethoscope cover as indicated in our research. The StethocapTM without antimicrobial can only accomplish the purpose you state, if it is disposed of and replaced after each use, or thoroughly cleaned. We find that the antimicrobial agent is not de minimis, and therefore classification of the article under heading 3808, HTSUS, is not precluded.
The StethocapTM with antimicrobial is also described in heading 9018, as accessories of instruments and appliances used in medical, surgical, dental, or veterinary sciences.
In accordance with GRI 1, taking into consideration only the headings, the StethocapTM with antimicrobial could be classified under either heading 3808, HTSUS, as a disinfectant article or heading 9018, HTSUS, as an accessory to a medical appliance.
Under GRI 1, we must also consider the relevant Section and Chapter notes. Note 2 to Section VI, HTSUS, which covers Chapter 38, HTSUS, states that, with some exceptions not pertinent in this case, “goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses for retail sale are to be classified in those headings and in no other heading of the tariff schedule.”
Note 2 to Chapter 90, HTSUS, provides as follows:
Subject to note 1 above, parts and accessories for machines,
apparatus, instruments or articles of this chapter are to be classified according to the following rules:
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;
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;
All other parts and accessories are to be classified in heading 9033.
Section VI, Note 2, does not apply, to the StethocapTM with antimicrobial, because the StethocapTM with antimicrobial is not classifiable in heading 3808, HTSUS, by reason of being put up in measured doses or for retail sale. The StethocapTM with antimicrobial is instead classifiable in heading 3808 because it is a disinfectant put up as an article. See Mita Copystar America v. United States, 160 F.3d 710 (Fed. Cir. 1998), in which the merchandise consisted of toner cartridges which were arguably classifiable in headings 3707, HTSUS, as “chemical preparations for photographic uses,” and 9009, HTSUS, as “parts and accessories of electrostatic photocopying apparatus.” Heading 3707, HTSUS, is also subject to Section VI, Note 2, and Chapter 90, Note 2(b) was also applicable. The court concluded that the toner cartridges were classifiable in heading 3707, HTSUS, whether or not they were put up in measured doses or for retail sale. Therefore, Section VI, Note 2, was determined to be inapplicable to the classification of toner cartridges. The court determined that Section VI, Note 2, was applicable only where merchandise put up in measured doses or for retail sale would be classified elsewhere, but for being put up in measured doses or for retail sale. As it was determined that Section VI, Note 2 was not applicable, there was no conflict between Section VI, Note 2, and Chapter 90, Note 2(b), and the toner cartridges could be classified in heading 9009, HTSUS, under GRI 1. In the instant case, the StethocapTM with antimicrobial, is not classified in heading 3808, HTSUS for the reason that it is put up in measured doses or for retail sale. Therefore the StethocapTM with antimicrobial is not required to be classified in heading 3808, HTSUS, by Section VI, Note 2, and can also be classified in heading 9018, HTSUS.
However, in Mita Copystar America v. United States, Additional U.S. Rule of Interpretation 1(c) was not applied. Additional U.S. Rule of Interpretation 1(c) provides:
In the absence of special language or context which otherwise requires ... a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory[.]
See Sharp Microelectronics Technology, Inc. v. United States, 122 F.3d 1446, 1453 (Fed. Cir. 1997) (“Additional U.S. Rule of Interpretation 1(c) further provides a tool to assist in finding the correct classification home for articles, such as those in issue, for which two headings compete”).
By its terms, Additional U.S. Rule 1(c), HTSUS, applies in the absence of special language or context which otherwise requires. The application of Additional U.S. Rule 1(c), HTSUS, has frequently been considered in the context of Section XVI, Note 2. Section XVI, Note 2(a) has been determined to be “’special language or context’ that renders Rule of Interpretation 1(c) inapplicable to the extent that they conflict.” See Mitsubishi International Corporation v. United States, 182 F.3d 884, 886 (Fed. Cir. 1999). CBP has consistently taken the position that Section XVI, Note 2, is special language or context that precludes the application of Additional U.S. Rule 1(c), HTSUS. See e.g. HQ 966963, dated April 30, 2004, HQ 966854, dated January 16, 2004. Chapter 90, Note 2, has language substantially identical to that of Section XVI, Note 2, therefore we conclude that Chapter 90, Note 2, is also special language or context. However, it is also the position of CBP that the special language or context, only precludes the application of Additional U.S. Rule 1(c), HTSUS, where the competing provisions at issue are both within the same section or Chapter (depending on whether the “special language or context” arises in the context of a section note or chapter note). See Sharp Microelectronics Technology, Inc. v. United States, supra, (Additional U.S. Rule 1(c), HTSUS, was applied where one competing provision was subject to Section XVI, Note 2, and the other competing provision was in Chapter 90, HTSUS). Cf .Nidec Corp. v. United States, 861 F. Supp. 136, aff’d 68 F. 3d 1333 (Fed Cir. 1995) (Additional U.S. Rule 1(c), HTSUS was not applied, where both competing provisions were subject to Section XVI, Note 2, HTSUS). Therefore, in this case, because one of the competing provisions, Heading 3808, HTSUS, is outside of Chapter 90, Note 2 to that chapter does not provide special language or context which precludes the application of Additional U.S. Rule of Interpretation 1(c), HTSUS.
Therefore we must determine whether heading 3808, HTSUS is a specific provision for the StethocapTM with antimicrobial. In HQ 965968, dated December 16, 2002, heading 9405, HTSUS, providing for “lamps and lighting fixtures was found to be a specific provision for a dental lamp designed to be mounted onto a dentist chair, as opposed to heading 9402, HTSUS, providing for “parts” of dentists’ chairs. In HQ 966854, dated January 16, 2004, heading 9401, HTSUS, providing for “seats” was found to be a specific provision for seats for fork-lift trucks, as opposed to heading 8431, HTSUS, providing for “parts” suitable for certain machinery. Similarly, in this case, we find heading 3808, HTSUS, providing for “…disinfectants and similar products, put up in…articles…” to be a specific provision for the StethocapTM with antimicrobial, as opposed to heading 9018, HTSUS, providing for “[i]nstruments and appliances used in medical, surgical, dental or veterinary sciences…; parts and accessories thereof.”
You assert that the StethocapTM is regulated by the Food and Drug Administration (“FDA”), as support for the argument that the StethocapTM is more specifically described in heading 9018, HTSUS. However, “it is well established that statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of Customs classification disputes.” Amersham Corp. v. United States, 5 CIT 49, 56 (1983). Articles are classified by the FDA to protect public safety, not as guidance to customs classification. HQ 085064, dated August 24, 1990.
In the teleconference you indicated that an alternative heading for the StethocapTM is a basket provision for articles of plastic. We do not agree that the StethocapTM with antimicrobial is classifiable under heading 3926, HTSUS, which provides for “[o]ther articles of plastics,” because, heading 3926, HTSUS, is a general heading or basket provision, as evidenced by the word "other." See The Item Company v United States, 98 F. 3d 1294, 1296 (Fed. Cir. 1996). Classification of imported merchandise in a basket provision is only appropriate if there is no tariff provision that covers the merchandise more specifically. See EM Industries, Inc. v. United States, 22 C.I.T. 156, 165, 999 F. Supp. 1473, 1480 (1998) ("'Basket' or residual provisions of HTSUS Headings. . . are intended as a broad catch-all to encompass the classification of articles for which there is no more specifically applicable subheading"). See also Apex Universal Inc. v. United States, 22 CIT 465, 471 (1998). In this case there are more specifically applicable headings therefore, the StethocapTM with antimicrobial is precluded from classification in heading 3926, HTSUS.
Finally, as we conclude that the classification of the StethocapTM with antimicrobial, is classified under GRI 1, we do not reach the essential character argument raised in your submission of September 24, 2004.
You have requested reconsideration of the classification of the StethocapTM without antimicrobial within heading 9018. In NY K83786, the StethocapTM without antimicrobial was classified in subheading 9018.90.8000, HTSUS. You assert that the correct classification is in subheading 9018.90.4000, HTSUS, which provides for “[i]nstruments 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: Other: Percussion hammers, stethoscopes and parts of stethoscopes,” stating that the subheading provides for “accessories to stethoscopes.”
Contrary to your assertion, subheading 9018.90.40, HTSUS, provides only for “parts” of stethoscopes and does not include accessories. Therefore the classification of an “accessory” in that subheading is precluded. There is no dispute, that the StethocapTM is an accessory, as opposed to a part of a stethoscope. Other subheadings of heading 9018, HTSUS, clearly provide for “parts and accessories,” in which case either parts or accessories could be classified therein. In this instance the principle of expressio unius est exclusio alterius (the expression of one thing implies the exclusion of all others) applies. In subheading 9018.90.40, only the term “parts” was included, thereby implying the exclusion of the term “accessories.” With regard to Note 2(b), it is the CBP position that the note provides for the classification of parts and accessories at the heading level, and classification at the subheading level is in accordance with GRI 6, according to which “the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and mutatis mutandis, to [rules 1 through 5], on the understanding that only subheadings at the same level are comparable.” Therefore we affirm that the correct classification of the StethocapTM without antimicrobial, is within heading 9018, HTSUS, specifically in 9018.90.8000, HTSUS, which provides for “[i]nstruments 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: Other: Other.”
Based on the above analysis, we affirm the holdings in NY K83122, dated February 20, 2004 and K83786, dated March 24, 2004.
HOLDING:
The StethocapTM with antimicrobial is classifiable, according to GRI 1, under subheading, 3808.90.7000, HTSUSA, which provides for “[i]nsecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers: Other: Other: Other: Containing an inorganic substance,” with a column one, general duty rate of 5% ad valorem.
The StethocapTM without antimicrobial is classifiable, according to GRI 1, under subheading, 9018.90.8000, HTSUSA, which provides for “[i]nstruments 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: Other: Other,” with a column one, general duty rate of “[f]ree.”
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are
provided on the internet at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY K83122, and NY K83786 are affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division