OT:RR:CTF:EMAIN H339643 PF
Center Director
Pharmaceuticals, Health and Chemicals
Center of Excellence and Expertise
U.S. Customs and Border Protection
715 Bob Bullock Loop Laredo, TX 78045
Attn: Alejandra Hernandez, Import Specialist
RE: Application for Further Review of Protest No: 280922109840; Tariff classification of an “AG Cuffill” device
Dear Center Director:
This is our decision regarding an Application for Further Review (AFR) of Protest No. 280922109840 filed by counsel on December 22, 2022, on behalf of Medline Industries, LP (Protestant). The Protest and AFR concern the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an AG Cuffill device. No sample was provided.
The subject merchandise was entered between August 23, 2021 and September 27, 2021 and was liquidated between July 1, 2022 and August 19, 2022 under heading 9026, HTSUS, and specifically subheading 9026.20.40, HTSUS, which provides for “Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof: For measuring or checking pressure: Electrical.” As a product of China, the subject merchandise was also subject to additional ad valorem duties pursuant to U.S. Note 20 to Subchapter III, Chapter 99, subheading 9903.88.01, HTSUS.
Protestant maintains that the subject merchandise is properly classified in heading 9018, HTSUS, and specifically subheading 9018.90.80, 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: Other.”
FACTS:
The subject AG Cuffill is a disposable, syringe-like device consisting of a graduated cylindrical barrel with a volume up to 10 cubic centimeters (10 cc) and a plunger. The plunger contains a battery and incorporates a small digital readout that displays the cuff pressure and a yellow button that turns the device on or off. The AG Cuffill is intended to measure and adjust (inflate/deflate) the intra-cuff pressure of endotracheal tubes, tracheotomy tubes, and laryngeal masks. It is used under medical supervision in hospitals, pre-hospital (EMS), extended care facilities, and outpatient clinics, where a patient may be intubated (to provide inhaled oxygen, medication, and/or anesthesia gases). The AG Cuffill is primarily used in the medical or surgical settings by medical professionals to measure and adjust the volume and pressure of the cuff (balloon) of a cuffed endotracheal tube, tracheotomy tubes or laryngeal masks.
ISSUE:
What is the proper classification of the subject AG Cuffill device under the HTSUS?
LAW AND ANALYSIS:
A decision on classification and the rate and amount of duties chargeable is a protestable matter under 19 U.S.C. §1514(a)(2). The subject Protest was timely filed on December 22, 2022, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further review of the protest is justified pursuant to 19 C.F.R. §174.24(a) because the protestant alleges that the Center’s decision in this matter was inconsistent with prior rulings on similar merchandise.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If 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. Under GRI 6, the classification of goods in the subheadings of a heading is determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2021 HTSUS provisions at issue 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:
Other:
9018.90.75 Other.
* * *
9018.90.80 Other.
* * *
9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof:
9026.20 For measuring or checking pressure:
9026.20.40 Electrical.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System 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 the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 9018, HTSUS, states:
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.
We agree with counsel that the AG Cuffill meets the terms of heading 9018, 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.” The AG Cuffill is primarily used in medical or surgical settings by medical professionals to measure and adjust the volume and pressure of the cuff (balloon) of a cuffed endotracheal tube, tracheotomy tubes or laryngeal masks. The AG Cuffill with cuffed endotracheal tube is used for patient intubation, i.e., to provide inhaled oxygen, medication, and/or anesthesia gases.
The subject merchandise falls outside the scope of heading 9026, HTSUS, which provides for “Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof." While the AG Cuffill contains a pressure gauge, it also does more than measure pressure. The AG Cuffill plays a key role in filling the cuff with a desired amount of air. Therefore, the AG Cuffill is classified in heading 9018, HTSUS, which covers the subject merchandise in its entirety. Our determination is consistent with CBP rulings, including New York Ruling (NY) N048910 (Feb. 4, 2009) and NY N271088 (Dec. 18, 2015), where CBP classified inflation devices with pressure measurement capabilities in heading 9018, HTSUS.
However, per GRI 6, prior to classifying the subject merchandise under the protestant’s preferred subheading (i.e., subheading 9018.90.80, supra.), we need to determine whether subject merchandise falls under the scope of a superior subheading. Specifically, the question is whether the subject AG Cuffill is an “Electro-medical instrument and appliance” of subheading 9018.90.75, HTSUS. In this respect, we note that in NY M86814 (Oct. 16, 2006), CBP classified a battery powered hand-held drive unit designed for surgical use in subheading 9018.90.75, HTSUS. CBP noted that because the device used electricity to power its function, it was classifiable in subheading 9018.90.75, HTSUS, as ‘“electro-medical” and not the “Other” of HTSUS 9018.90.80[,]” HTSUS. Similarly in this case, since the AG Cuffill operates via electricity from a battery, it constitutes an “electro-medical instrument and appliance.” Because the AG Cuffill is classifiable under subheading 9018.90.75, HTSUS it is not classifiable under the residual provision of subheading 9018.90.80, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the AG Cuffill device is classified under heading 9018, HTSUS, specifically 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 general, column one rate of duty is Free.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9018.90.75, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, importers of goods of China classified under subheading 9018.90.75, HTSUS, must also report the Chapter 99 subheading, i.e., 9903.88.01.
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 online at http://www.usitc.gov/tata/hts/.
Since reclassification of the merchandise as indicated above would result in the same rate of duty as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division