HQ 0088469 - Protest and Request for Further Review No. 2704-90-003672, dated November 17, 1989; Pooling Plus System "1000" medication system; instrument or apparatus for use in the medical sciences - United States International Trade Commision Rulings

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HQ 088469

February 26, 1991

CLA-2 CO:R:C:M 088469 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.90.80

District Director
U.S. Customs Service
300 South Ferry St. Terminal Island
Suite 1001
San Pedro, CA 90731

RE: Protest and Request for Further Review No. 2704-90-003672, dated November 17, 1989; Pooling Plus System "1000" medication system; instrument or apparatus for use in the medical sciences

Dear Sir:

This is in response to Protest and Request for Further Review No. 2704-90-003672, dated November 17, 1989, regarding the classification of certain medication systems imported by Stedim of Walnut Creek, California.

FACTS:

The article in question is the Caremark Pooling Plus System "1000" ("PPS 1000"), which is described as a collection unit with a three lead transfer set. The PPS 1000 is intended for use by hospital patients who require multiple vials of medication when receiving their scheduled infusions. The PPS 1000 allows the doctor, nurse, or the patient to pool all the prepared solutions into the system for a one time infusion.

The collection unit of the PPS 1000 is a flat plastic bag capable of holding 1000 ml of solutions. Three plastic tubes, approximately twelve inches long, are attached to the bottom of the collection unit. Each plastic tube has its own spike at its free end for attachent to solution containers. A clamp is attached to each plastic tube that is able to block the tube when the clamp is closed or to open the tube when the clamp is released. The clamps are released so that the tubes open when the solution from the containers is ready to be transfered through the plastic tubes to the collection unit. The clamps are closed around the plastic tubes once the appropriate amount of solution has been transferred to the collection unit. At that time the inlet port located on the bottom of the collection unit
is closed so that no further solutions may enter the collection unit. The bottom of the collection unit also has a spike port that is attached to an intravenous administration unit so that the solutions in the collection unit may be transferred through the administration unit to the patient.

Upon entry, the PPS 1000 was classified by the importer in subheading 3923.29.00, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"), as "Articles for the conveyance or packing of goods, of plastics...Sacks and bags (including cones)...Of other plastics..." Your office reclassified the PPS 1000, and liquidated the article under subheading 9018.90.80, HTSUSA, as "Instruments and appliances used in medical, surgical, dental or veterinary sciences...Other instruments and appliances and parts and accessories thereof...Other..."

ISSUE:

Whether the PPS 1000 is classified in subheading 3923.29.00, HTSUSA, as "Articles for the conveyance or packing of goods, of plastics...Sacks and bags (including cones)...Of other plastics...", or in subheading 9018.90.80, HTSUSA, as "Instruments and appliances used in medical, surgical, dental or veterinary sciences...Other instruments and appliances and parts and accessories thereof...Other..."

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). GRI 1, HTSUSA, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes..." The headings in contention are headings 3923 and 9018, HTSUSA. These headings describe the following:

3923 Articles for the conveyance or packing of goods, of plastics...

9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences...

The importer believes that since the PPS 1000 enables medical solutions to move from the solutions' containers, through the collection unit, to the patient, that the PPS 1000 is an article for the conveyance of goods. This office disagrees. The Explanatory Notes state that heading 3923 covers "all articles of plastics commonly used for the packing or conveyance of all kinds of products." (emphasis added) Explanatory Note 39.23, Vol. 1, Harmonized Commodity Description and Coding System ("HCDCS"), p.

54. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUSA. See 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The PPS 1000 is not a common conveyancing apparatus. The PPS 1000 is not like a bag, sack or box in which an article is placed to be moved from one location to another. Such plastic conveyancing articles are generally reusable, and may be used to transport other items than what was originally placed within them. Additionally, plastic conveyancing apparatus have more than a temporary nature. The goods are kept and protected by the articles for a length of time. The PPS 1000 is a specially designed medication system. The medication is in the collection unit for only a short period of time. The PPS 1000 packaging warns against the possiblity that the bag will be punctured and then made useless. This is not an article for the conveyance of goods within the terms of heading 3923.

There is no doubt that the PPS 1000 is an instrument for use in the medical sciences. The packaging of the PPS 1000 states that it is used by patients, is used for distributing medication, and may be operated by a doctor, nurse or the patient. The importer states that "[t]his is a very simple drug collection bag which is widely used in hospitals and for home health care patients." Thus, the PPS 1000 meets the terms of heading 9018 in accordance with GRI 1. The proper classification for the PPS 1000 is in subheading 9018.90.80, HTSUSA, as "Instruments and appliances use in medical, surgical, dental or veterinary sciences...Other instruments and appliances and parts and accessories thereof...Other..."

HOLDING:

The Caremark Pooling Plus System "1000" is a specially designed medical apparatus or instrument. In accordance with GRI 1, the Pooling Plus System "1000" is described by heading 9018. The proper classification of the Pooling Plus System "1000" is in subheading 9018.90.80, HTSUSA, as "Instruments and appliances use in medical, surgical, dental or veterinary sciences...Other instruments and appliances and parts and accessories thereof...Other..."

The protest should be denied in full. A copy of this decision should be attached to the Form 19 Notice of Action for the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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