CLA-2 OT:RR:CTF:EMAIN H277654 PF
Peter Vandeput
Materialise Dental, NV
Technologielaan 15
3001 Leuven - Belgium
RE: Modification of NY N177676; tariff classification of dentistry items from Belgium
Dear Mr. Vandeput:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York (“NY”) Ruling Letter N177676, dated August 25, 2011, regarding the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a surgical tray. The surgical tray was classified under subheading 9018.49.80, HTSUS, as “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, used in dental sciences, and parts and accessories thereof: Other: Other.” After reviewing this ruling in its entirety, we believe that it is partially in error. For the reasons set forth below, we hereby modify NY N177676 with respect to the classification of the surgical tray. The remaining analysis of N177676 remains unchanged.
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, a notice proposing to modify NY N177676 was published on April 3, 2019 in Volume 53, Number 9 of the Customs Bulletin. No comments were received in response to the proposed action.
FACTS:
In NY N177676, we described the products as follows:
The LongStop Drills, which come in various diameters and lengths, all color coded, are:
“(D)ental drills for the creation of the osteotomy. Specific features of LongStop Drills include a flange that blocks the user from drilling deeper than virtually planned in a 3D dental software. Indeed, when the flange makes contact with the top of a drill key or the top of a guiding tube, deeper guided drilling is made impossible.” The LongStop Drills are imported in individual plastic containers and are intended for multiple uses (after sterilization).
During the dental surgery, the LongStop drills are taken from a specialized, color coded, surgical tray. The surgical tray allows for easy selection of the components during surgery and for efficient replacement after the procedure by matching the color of the rings on the drill shank with the color of the silicone plugs in the tray.
The tray, made of metal, also has, inter alia, a notched section with millimeter lengths marked off so that the length of the drill can be double checked before use, a hinged top, spaces for additional drills which are not color coded, a relatively shallow subtray, and a hinged top. It has holes in it to also allow it to be used in sterilization. The drills will not be imported in the trays.
In addition, a Summary of Technical Documentation provided by you indicates that the surgical tray is made of stainless steel and depicts the surgical tray holding the drill shanks.
ISSUE:
Whether the subject surgical tray is classifiable in heading 7326, HTSUS, as other articles of iron or steel or in heading 9018, HTSUS, as other instruments and appliances used in dental sciences and parts and accessories thereof.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). 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 provisions under consideration are as follows:
7326 Other articles of iron or steel
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
* * *
Section XV, Note 1(h) states:
This section does not cover: (h) Instruments or apparatus of section XVIII, including clock or watch springs:
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 8487, 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 heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor 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. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 7326, states, in relevant part: This heading covers all iron or steel articles obtained by forging or punching, by cutting or stamping or by other processes such as folding, assembling, welding, turning, milling, or perforating other than articles included in the preceding headings of this Chapter or covered by Note 1 to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature.
The EN to heading 9018, states, in relevant part: 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.
Note 1(h) to section XV, states that this section does not cover the instruments or apparatus of section XVIII. Chapter 90, HTSUS, is in section XVIII. Chapter 73 is in section XV. As a result, instruments and apparatus of Section XVIII (chapter 90) are excluded from Section XV (chapter 73). If the surgical tray is classifiable under chapter 90, and specifically, under heading 9018, HTSUS, a section XVIII heading, it is not classifiable in heading 7326, HTSUS. Therefore, our analysis of the subject surgical tray begins with evaluating whether it is an article of heading 9018, HTSUS.
The subject surgical tray consists of stainless steel and functions as a tool holder for the drill shanks in order with different colors to make the selection of the tools easier during surgery. The surgical tray allows for efficient replacement after surgery by matching the color of the rings on the drill shank with the color of the silicone plugs in the tray. The surgical tray also has a notched section with millimeter lengths marked off so that the length of the drill can be double checked before use, a hinged top, and spaces for additional drill shanks which are not color coded.
Heading 9018, HTSUS, provides for, among other things, instruments and appliances used in the medical and surgical sciences and their parts and accessories. EN 90.18 explains that the 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 also provides that articles of heading 9018, HTSUS, include “dental burrs, discs, drills and brushes, specifically designed for use with a dental drill engine or handpiece.” The subject surgical tray is not a dental burr, disc, drill or brush designed for use with a dental drill engine or handpiece nor is it an “other” article of heading 9018, HTSUS. Notably, the LongStop Drills are not imported with the surgical tray. The subject surgical tray is also not an instrument or appliance used by dentists to “make a diagnosis, to prevent or treat an illness or to operate.” See EN 90.18. Therefore, the surgical tray is not an “other” instrument or appliance used in the dental sciences of heading 9018, HTSUS.
We have also considered whether the subject surgical tray is a part or accessory of heading 9018, HTSUS. As the surgical tray is not covered by the terms of heading 9018, HTSUS, Note 2(a) to Chapter 90, HTSUS, is not applicable. However, since the LongStop Drills are classified in heading 9018, HTSUS, our analysis begins with evaluating whether the surgical tray is a part or accessory of the LongStop Drills under Note 2(b) to Chapter 90.
The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
The subject surgical tray is a separate and distinct commercial article that serves an independent function or purpose from the LongStop Drills. The function and purpose of the surgical tray is to hold the drill shanks during dental surgery. However, because a user would be able to operate the LongStop Drills without the surgical tray, it is not essential and necessary to the functioning and purpose of the LongStop Drills. To the extent that the surgical tray is not attached to the LongStop Drills, and that the LongStop Drills will continue to operate without them, it is not a part of the LongStop Drills. Accordingly, we find that the surgical tray is not a part as defined in Willoughby and Pompeo.
The courts have also considered the nature of “accessories,” and have found that although the HTSUS does not define the term “accessory,” the HTSUS “refers to accessories either in relation to articles and equipment . . . or to the specific article named.” Rollerblade, Inc. v. United States (“Rollerblade”), 116 F. Supp. 2d 1247, 1253 (Ct. Int’l Trade 2000), aff’d 282 F.3d 1349, (Fed Cir. 2002). The terms of heading 9018, HTSUS, include, in relevant part, “Instruments and appliances used in medical, surgical, dental or veterinary sciences, . . .parts and accessories thereof.” The court in Rollerblade agreed that the common meaning of the term indicates that “accessories must serve a purpose subordinate to, but also in direct relationship to the thing they ‘accessorize.’” Id. at 1253. Applying this definition to the articles under consideration, we find that the surgical tray does not serve a purpose in direct relation to the LongStop Drills, in that it does not contribute to the LongStop Drills’ effectiveness in making a diagnosis, preventing or treating an illness or in surgery. Instead, the surgical tray’s purpose is to hold the drill shanks during surgery to make the selection of the tools easier during the surgery. For these reasons, we find that the surgical tray is not an accessory. Therefore, the surgical tray is not a part or accessory and cannot be classified as a part or accessory under the terms of heading 9018, HTSUS.
Because the surgical tray is not a part or accessory of the instruments of heading 9018, HTSUS, Note 2(b) to chapter 90 does not apply, and therefore, it cannot be classified under chapter 90. As the surgical tray is not classified in chapter 90, we do not reach the issue of whether it is a part of general use under Note 1(f) to chapter 90. Because the surgical tray is not classifiable in chapter 90, it is not excluded by Note 1(h) to Section XV, HTSUS (Chapter 73).
Heading 7326, HTSUS, provides for “Other articles of iron or steel.” The ENs to heading 7326, state, in relevant part, that this heading covers all iron or steel articles obtained by forging or punching, by cutting or stamping or by other processes such folding, assembling, welding, turning, milling or perforating other than articles included in the preceeding headings of this Chapter or covered by Note 1 to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature.” The subject surgical tray is an article made of stainless steel. Because the surgical tray is not more specifically covered elsewhere in the Nomenclature, we conclude, in accordance with GRI 1, that the surgical tray is properly classifiable under heading 7326, HTSUS, which provides for “Other articles of iron or steel.” Specifically, classification is under subheading 7326.90.86, HTSUS, the provision for "Other articles of iron or steel: Other: Other: Other: Other." This is consistent with Headquarters Ruling H036115, dated November 19, 2008 (classifying a stainless steel metal basket and stainless steel metal cases used in the medical field for the sterilization of various electrical and hand-held medical instruments in heading 7326, HTSUS); NY N019480, dated November 21, 2007 (classifying a stainless steel tray with slots that would be “used for carrying medical devices in hospitals or medical offices” in heading 7326, HTSUS) and NY 873837, dated May 27, 1992 (tubular sterilization containers made of stainless steel with removable top and bottom lids and a tray with 9, 20, or 40 openings for catheters which suspends them when lowered into a pot of boiling water to effect sterilization were classified in heading 7326, HTSUS).
HOLDING:
Under the authority of GRI 1, the subject surgical tray is classified in heading 7326, HTSUS, specifically under subheading 7326.90.86, HTSUS, which provides for “Other articles of iron or steel: Other: Other: Other: Other.” The 2019 column one, general rate of duty is 2.9 percent ad valorem.
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/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N177676, dated August 25, 2011, is MODIFIED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division