CLA-2 OT:RR:CTF:TCM H152456 GA
Ms. Elaine Jacoby
Manager
Miles, Hastings & Joffroy, Inc.
6403 Avenida Costa Norte
Suite 3000
Otay Mesa, CA 92073
RE: Revocation of HQ 085366, dated December 4, 1989; tariff classification of medical apparatus.
Dear Ms. Jacoby:
This letter concerns Headquarters Ruling (HQ) 085366, dated December 4, 1989, issued to you on behalf of your client Davis & Geck. That ruling involved the tariff classification of a Vital Vue Irrigation, Suction, and Illumination System Disposable Surgical Instrument (“Vital Vue”). In that ruling, U.S. Customs and Border Protection (CBP) classified the Vital Vue in subheading 9018.90.60, HTSUS, which provides for, “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: Electro-medical instruments and appliances and parts and accessories thereof: Electro-surgical instruments and appliances, other than extracorporeal shock wave lithotripters; all the foregoing and parts and accessories thereof.”
We have reviewed HQ 085366 and find it to be in error. For the reasons set forth below, we hereby revoke HQ 085366.
On December 23, 2015, pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin Vol. 49, No. 51. No comments were received in response to this notice.
FACTS:
In HQ 085366, the merchandise was described as follows:
A a tube string subassembly of the Vital Vue Irrigation, Suction, and Illumination System Disposable Surgical Instrument (“Vital Vue”). The subassembly consists of three lengths of plastic tubing bonded together to form separate channels for irrigation, suction, and electrical wires for the light power source. In addition, it contains a threaded suction adapter, a spike connector with protective cap, and a small telephone type electrical connector. The subassembly is also equipped with a small light bulb, which contains a thermistor designed to shut off the bulb when it becomes too hot.
The above-described subassembly is part of a single instrument that is used by a doctor to irrigate and/or aspirate the surgical field during a procedure to remove debris or blood. Irrigation (washing out or flushing a wound or body opening with a stream of water or another liquid) and aspiration (removal, by suction, of a gas, fluid, or tissue from a body cavity or organ) augment a variety of medical or dental applications by reducing infection and/or providing the practitioner with a better view of the subject of the given procedure. The electrical connector and light bulb (with thermistor) contribute to the lighting function of the instrument, which allows the doctor to visualize the field without increasing the number of hands/instruments in the field.
ISSUE:
Whether the medical apparatus are electro-surgical instruments within the meaning of subheading 9018.90.60, HTSUS.
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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
9018 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
9018.90 Other instruments and appliances and parts and accessories thereof
Other
Electro-medical instruments and appliances and parts and accessories thereof
9018.90.60 Electro-surgical instruments and appliances, other than extracorporeal shock wave lithotripters; all the foregoing and parts and accessories thereof
Other
9018.90.75 Other
* * * * *
There is no dispute that the products at issue are classified in
heading 9018, HTSUS. Nor is there a question whether they are “electro-medical instruments or appliances of subheading 9018.90, HTSUS. The issue is whether the instant merchandise falls under the scope of the provision for “electro-surgical instruments and appliances” in subheading 9018.90.60, HTSUS.
In order to determine the proper classification at the subheading level, GRI 6 is applied. GRI 6 provides that for legal purposes, classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapters notes also apply, unless the context otherwise requires.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs”) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs 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. 89-90, 54 Fed. Reg. 35127 (August 23, 1989).
Explanatory Note 90.18 provides, in relevant part, as follows:
(V) OTHER ELECTRO-MEDICAL APPARATUS
This heading also covers electro-medical apparatus for preventive, curative or diagnostic purposes, other than X-ray, etc., apparatus of heading 90.22. This group includes:
(7) Electro-surgical apparatus. These utilise high-frequency electric currents, the needle, probe, etc., forming one of the electrodes. They can be employed to cut tissues (electrocutting) with a lancet (electric lancet), or to coagulate the blood (electrocoagulation). Certain combined instruments may, by the use of control pedals, be made to act interchangeably as electrocutters or electrocoagulators. (Emphasis added)
The above explanatory note is consistent with the definition of electro-surgical in the Merriam-Webster Dictionary, which defines the term as “surgery by means of diathermy.” (2011) available at wwww.merriam-webster.com. The Merriam-Webster Dictionary defines “diathermy” as “the generation of heat in tissue by electric currents for medical or surgical purposes.” Id.
Based upon these definitions, the term “electro-surgical” means that electric currents are utilized in the surgery, whether for cutting tissue, coagulating blood or for other surgical applications. However, as described above, despite the fact that the instant products differ in the construction and function, the Vital Vue, the Hummer and E1, and the CASPER do not use electric currents to cut tissue or coagulate blood.
We note that we have classified other products that do not employ electrocutting or electrocoagulation in the strictest sense in subheading 9018.90.60, HTSUS. However, the instant products are distinguishable from those rulings. For instance, NY N006383, dated March 6, 2007, and HQ 951871, dated August 18, 1992 covered products that operated by laser or other light or photon beam processes. In NY N006383, CBP classified the Karl Storz Calculase (article number: 27750120-1), a Ho:Yak desktop laser used in lithotripsy surgery in subheading 9018.90.60, HTSUS. The laser energy generated by the machine enables the optimum lithotripsy of small to medium sized calculi in the urinary system. Similarly, in HQ 951871, CBP classified the “Pulsolith” Laser Lithotripter (“laser’) in subheading 9018.90.60, HTSUS. Here, the laser is a pulsed dye laser used to fragment ureteral, gallstone and common bile duct stones using a photo acoustic effect. In both cases, access to a body cavity is gained through a body opening to perform a surgical procedure to destroy an internally-located calculus even though such surgery does not entail the cutting of tissue or coagulation of blood. In addition, the procedures are performed in an operating room by a surgeon on a patient who is under some form of anesthesia.
On the other hand, the apparatus subject to HQ 085366 does not serve to perform a surgical procedure by virtue of its electronic operation. Rather, the subject medical apparatus are properly classified under subheading 9018.90.75, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject medical apparatus are classified in subheading 9018.90.75, HTSUS, which provides for, “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: Electro-medical instruments and appliances and parts and accessories thereof: Other: Other.” The rate of duty is “Free.”
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov.
EFFECT ON OTHER RULINGS:
In accordance with the above analysis, HQ 085366, dated December 4, is hereby REVOKED.
In accordance with 19. U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division