OT:RR:CTF:CPMM H296546 KSG
Christi Roos
P.O. Box 30209
4294 Swinnea Road
Memphis TN 38118
RE: Tariff classification of insufflation tubing
Dear Ms. Roos:
This ruling is in reference to your request for a binding ruling dated March 26, 2018, on behalf of Global Resources International, Inc., regarding the classification of insufflation tubing under the Harmonized Tariff Schedule of the United States (HTSUS), You also asked about the country of origin for U.S. Government procurement purposes. We have forwarded the procurement issue to the Value and Special Programs Branch for their response.
FACTS:
Global Resources International, Inc. is the importer of insufflation tubing.
In order to perform laparoscopic surgery, the abdominal wall must be distanced from the internal organs allowing the surgeon to clearly visualize the inside of the abdomen through a laparoscope. Slowly pumping carbon dioxide gas (CO2) into the abdominal cavity lifts the abdominal wall away from the organs inside creating a pneumoperitoneum. This inflation process is referred to as insufflation; the CO2 gas pump is a machine known as an insufflator. Insufflation tubing is used to interconnect and deliver CO2 from an insufflation machine to a patient.
Insufflation tubing is typically 3 meters (around 10 feet) in length with a filter attached about 30 cm (12 inches) from one end. The purpose of the filter is to prevent fluid backflow into the insufflator and to help prevent contaminants from entering the patient’s abdominal cavity. One end of the tubing comprises a male Luer lock fitting which always connects to an instrument that is inserted into the patient’s abdomen. The other end connects to the insufflator which may be any number of types of fittings.
ISSUE:
Whether the insufflation tubing is a medical instrument of heading 9018, a part of a machine of heading 8421 or a plastic tubing of heading 3917.
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 headings under consideration are the following:
3917 Tubes, pipes and hoses and fittings thereof (for example, joints, elbows, flanges) of plastics.
8421 Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof: centrifuges, including centrifugal dryers.
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: Electro-diagnostic apparatus (including apparatus for functional exploratory examination or for checking physiological parameters); parts and accessories thereof.
Chapter Note 2(u) of Chapter 39, HTSUS, and Section Note 1(m) to Section XVI, which includes Chapter 84, both exclude articles of chapter 90. Therefore, we must first consider whether the insufflation tubing is classified in chapter 90.
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use “is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.”
In GRK Can., Ltd. v. United States, 180 F. Supp. 3d 1260 (Ct. Int’l Trade 2016), the Court of International Trade stated that “In the typical provision that is controlled by use, the word “use” or “used” appears in the language of the subheading. In those provisions, the heading describes articles by the manner in which they are used as opposed to by name…. where a tariff term does not include the word “use” it may nonetheless be controlled by use when the term itself (including the Section and Chapter Notes) or the Explanatory Notes indicates that, as a matter of law, the provision is controlled by use.”
In Dependable Packaging Solutions, Inc. v. United States, Slip Op. 2013-23 (Ct. Int’l Trade 2013), aff’d 757 F.3d 1374 (Fed. Cir. 2014), the Court applied the factors set forth in U.S. v. Carborundum Co., 536 F.2d 373 (C.C.P.A. 1976) (ruling on a provision in the Tariff Schedule of the United States (TSUS), the predecessor to the HTSUS, as applicable to determine whether particular merchandise (glass vases sold to be filled with flowers) principal use was for placement on a table, kitchen, toilet, office, indoor decoration or similar purposes rather than as packing containers of glass. Factors considered in making the determination of principal use included: use in the same manner as merchandise which defines the class; the general physical characteristics of the merchandise; the economic practicality of so using the import; the expectation of the ultimate purchasers; the channels of trade in which the merchandise moves; the environment of the sale, such as accompanying accessories and the manner in which the merchandise is advertised and displayed; and the recognition in the trade of the use. The actual use of the goods is evidence of the principal use but is still only one of a number of factors. See ENI Tech. Inc. v. United States, 641 F. Supp. 2d 1337 (Ct. Int’l Trade 2009), and Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020 (Ct. Int’l Trade 2000).
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, constitute the official interpretation of the Harmonized System at the international level. While neither legally binding not 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).
EN 90.18 provides 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(I) proceeds to list numerous exemplars of the type of medical instruments and appliances which are classifiable under heading 9018, HTSUS, including (G) Pharyngeal, oesophageal, stomach or tracheotomy instruments: oesophagoscopes, bronchoscopes, stomach pumps, intubation tubes, etc.…
Heading 9018 is a principal use provision. See HQ 959752, dated May 23, 1997. The EN states that articles in heading 9108 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…” At the time of importation, the insufflation tubes are intended for use principally by doctors for surgical procedures involving the abdomen. In applying the Carborundum factors to the instant case, we find that the articles in question are used by surgeons in medical operations, connect the patient to a machine in surgery, and are sold by medical supply companies.
Based on the above, we find that the insufflation tubing meet the terms of heading 9018, HTSUS. Classification under either heading 3917 or 8421 are precluded by Chapter Note 2 (u) of Chapter 39, HTSUS, and Section Note 1(m) to Section XVI, of which Chapter 84 is a part.
In accordance with GRI 6, the applicable subheadings for the insufflation tubing are either subheading 9018.90.75, HTSUS, as a part or accessory of an insufflator or in subheading 9018.90.80, HTSUS, as an other medical instrument and appliance.
CBP classified Intravenous solution administration sets (I.V.) in subheading 9018.90.80, HTSUS, rather than subheading 9018.90.75, HTSUS, in HQ 957817, dated December 1, 1995. CBP considered whether such articles were either parts or accessories and determined that they were neither. The dialysis machine did not depend on the use of an I.V. administration set so it was not considered a part of the dialysis machine. Since the I.V. administration set did not supplement or assist the functioning of the dialysis machine, it was also not considered an accessory. “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.” We find that the insufflation tubing is much like the I.V. administration sets discussed in HQ 957817 and that it is neither a part nor an accessory of the insufflator for the same reasons set forth in HQ 957817. Accordingly, the insufflation tubing is classified in subheading 9018.90.80, HTSUS, as: “other medical instruments and appliances.”
HOLDING:
By application of GRI’s 1 and 6, the insufflation tubing is classified in heading 9018 and specifically subheading 9018.90.8000, HTSUS Annotated. The column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division