OT:RR:CTF:EMAIN H302884 NVF
Port Director, Port of El Paso
U.S. Customs and Border Protection
3600 E. Paisano
El Paso, TX 79905
Attn: Christine Webster, Import Specialist, Pharmaceuticals, Health, and Chemicals Center for Excellence and Expertise
RE: Application for Further Review of Protest No. 2402-18-100005; Classification of Plastic Transducer Covers
Dear Port Director:
This letter is in response to the Application for Further Review (“AFR”) of Protest No. 2402-18-100005, timely filed by Salcedo Customs International on behalf of Civco Medical Instruments (“Civco”). The protest contests the classification and liquidation by Customs and Border Protection of certain plastic transducer covers under heading 3926 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject covers are stated to be imported in a single container with gel and a band. Assuming the importation is a retail set classified pursuant to GRI 3(b), it is undisputed that the plastic transducer covers provide the essential character. The covers are rectangular shaped tubes with a closed end and an open end created from a flat sheeting. They are telescopically folded for easy application by the end user. The open ends are for the insertion of various size transducers. The covers fit over the transducers to prevent cross-contamination. The gel can be used both on transducers and the patient. The band fits tightly over the covers to secure them to prevent air bubbles.
The merchandise was entered under subheading 9018.90.8000, HTSUS, as other parts and accessories of instruments and appliances used in medical sciences. CBP reclassified the covers under heading 3926, HTSUS, as other articles of plastic.
Civco protests and argues that the transducer covers are suitable for use solely or principally with “medical transducers”. It asserts that the covers should therefore be classified under heading 9018, HTSUS as accessories or parts of an electro-mechanical apparatus (i.e. an ultrasound machine). In its application for further review, Civco contends that the port’s decision to liquidate its entry under heading 3926 is inconsistent with NY N245525, HQ 966911, and NY H87108.
ISSUE:
Whether the transducer covers are classified as other articles of plastic in heading 3926, HTSUS, or as other parts and accessories of instruments and appliances used in medical, surgical science in heading 9018, HTSUS.
LAW AND ANALYSIS:
We observe as an initial matter that the matters protested are protestable under 19 U.S.C. § 1514(a)(2) as decisions on classification and amount of duties chargeable. The subject merchandise was entered by Civco on September 25, 2017. On December 15, 2017, CBP liquidated the entries. On January 17, 2018, Civco timely filed a protest and AFR, within 180 days of liquidation of the first entry. Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006). Further review of the protest is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a previous CBP decision concerning substantially similar merchandise.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all classification purposes.
GRI 1 requires that classification be determined first 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 heading 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:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914.
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.
Note 2(u) to Chapter 39, HTSUS specifically excludes “Articles of Chapter 90 (for example, optical elements, spectacle frames, drawing instruments).”
Note 2 to Chapter 90, HTSUS, provides:
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.
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).
The EN to heading 9018, HTSUS, states, in pertinent 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. Instruments and appliances for anatomical or autoptic work, dissection, etc., are also included, as are, under certain conditions, instruments and appliances for dental laboratories (see Part (II) below). The instruments of the heading may be made of any material (including precious metals).
As Chapter 39 Note 2(u) excludes articles of Chapter 90, our initial analysis is whether the subject merchandise is classifiable as an accessory or part of instruments and appliances used in medical, surgical, dental or veterinary sciences of heading 9018, HTSUS.
The term “accessory” is not defined in the HTSUS or in the ENs. This office has previously stated that the term “accessory” is generally understood to mean an article that must directly contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation). See HQ 301594, dated December 18, 2018; HQ 958710, dated April 8, 1996; and, HQ 950166, dated November 8, 1991. We also employ the common and commercial meanings of the term “accessory,” as per Rollerblade v. United States, wherein the Court of International Trade derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (Ct. Int'l Trade 2000) (holding that inline roller skating protective gear is not an accessory because the protective gear does not directly act on the roller skates).
The term “part” is not defined in the HTSUS. In the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a part for tariff classification purposes. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997). Under the first test, articulated in United States v. Willoughby Camera Stores, 21 C.C.P.A. 322 (1933), an imported item qualifies as a part only if can be described as 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 779. Pursuant to the second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests). An item is not a part if it is “a separate and distinct commercial entity.” Bauerhin, 110 F.3d at.779.
In applying the court’s standard to the instant facts, we must examine whether the subject covers directly contribute to the effectiveness of a transducer’s function in order to determine whether it is an accessory. A transducer is an ultrasonic wand which sends and receives sound waves. The sound waves bounce off body tissues and echo back to the transducer which collects the echos for use in generating an image. The subject transducer covers are described as providing a barrier to prevent cross-contamination of the transducer. As such, they do not directly add to or enhance the transducer’s function of sending and receiving sound waves.
Nor are the transducer covers considered parts of a transducer. While they may be designed solely for use with a wide range of transducers, that alone does not satisfy the court’s test for whether an item qualifies as a part. See Ludvig, 63 F. Supp. 2d at 1178. Rather, they must be an integral, constituent, or component part without which the transducer cannot function. In this case, the transducer covers are used to prevent cross-contamination and a transducer can function as a transducer without the disposable plastic cover.
Moreover, we note that it has not been established that the transducers for which the subject covers are intended are properly classified under heading 9018, HTSUS, on their own. While ultrasound machines incorporate transducers to convert soundwaves to electronic signals for the purposes of creating an image, we note that separately imported transducers are commonly classified under heading 8543, HTSUS, as electrical machines or apparatus having individual functions not elsewhere specified. See NY N007016, dated March 13, 2007.
Notwithstanding the classification of the “medical transducer” referred to in Civco’s application for further review, based on the foregoing, the subject covers are neither parts nor accessories of the transducers. Accordingly, they certainly are not classifiable as parts or accessories of instruments and apparatus of heading 9018, HTSUS.
As the subject articles are not accessories or parts of heading 9018, HTSUS, Note 2(b) to Chapter 90 is inapplicable. The subject plastic transducer covers are also not included under any other more specific provision in Chapter 39, and therefore they fall under heading 3926, HTSUS, specifically subheading 3926.90, HTSUS, as other articles of plastic.
We further note that CBP has historically classified various styles of protective barriers used in the medical arena to cover medical apparatus according to their constituent material. In NY 883919, dated April 13, 1993, CBP classified plastic disposable banded bags, used to cover non-sterile items in the operating room, and surgical drapes, under subheading 3926.90, HTSUS, as other articles of plastic. In NY C81283, dated November 28, 1997, CBP classified a protective drape designed to protect equipment in an operating room under subheading 3926.90, HTSUS. See also NY 8708868, dated February 13, 1992, in which CBP classified protective barriers designed to shield C-arm and mobile X-ray drapes, microscope, laser and video camera drapes, and x-ray cassette drapes” under 3926.90, HTSUS. In NY N041298, dated November 3, 2008, CBP classified a general purpose probe cover used to shield medical apparatus in subheading 3926.90, HTSUS. In HQ H304940, dated December 10, 2019, CBP classified plastic stethoscope covers in subheading 2936.90, HTSUS.
We observe that our decision is not inconsistent with the prior rulings cited by Civco. In NY N245526, dated September 6, 2013, we classified certain plastic surgical drapes under heading 9018, HTSUS because those drapes contained electrical connectors, which complete an electrical circuit that sounds an alarm if the drape is not used properly or if the sterile barrier between the patient and a robotic arm was breached during surgery. The plastic covers in this case do not electrically connect to the transducer or any other part of the ultrasound machine and therefore are not like the plastic drapes in NY N245526. In NY H87108, dated February 5, 2002, we classified disposable plastic surgical forceps under heading 9018. Forceps have a different function than a protective cover and therefore NY H87108 also does not apply. Lastly, in HQ 966911, dated April 1, 2004, we classified certain textile covers as accessories of a mechano-therapy appliance of heading 9019, HTSUS. The principal machine was used in hospitals and a passive motion exerciser for simultaneously flexing the hip and knee joints of a human leg. The cover was placed on the hard pieces of the machine that the patient rests on to prevent sores, friction burns, etc. Like the forceps of NY H87108, the mechano-therapy appliance at issue in HQ 966911 differs substantially from the transducers discussed herein. Accordingly, reliance on HQ 966911 is inapposite. In light of the foregoing, we find that our decision is not inconsistent with prior rulings.
HOLDING:
By application of GRIs 1 and 6, the transducer covers are classified in heading 3926, specifically subheading 3926.90.99 of the 2015 HTSUS, which provides for: Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.”
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division