HQ 0954914 - Protest No. 1704-93-100153; Orbiter; Ceiling Services Units; Medical Accessories; NY 874970; HQs 087704 and 954174; Chapter 90, Note 2 - United States International Trade Commision Rulings

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HQ 954914

November 26, 1993

CLA-2 CO:R:C:M 954914 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9033.00.00

District Director of Customs
1 East Bay Street
Savannah, GA 31401

RE: Protest No. 1704-93-100153; Orbiter; Ceiling Services Units; Medical Accessories; NY 874970; HQs 087704 and 954174; Chapter 90, Note 2

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 1704-93-100153, which concerns the classification of Orbiters under the Harmonized Tariff Schedule of the United States (HTSUS). The entries of the subject merchandise were liquidated on January 15, 1993. The protest was timely filed on March 3, 1993.

FACTS:

The subject merchandise, labeled the "Orbiter", is a support system which can be used in surgical suites, surgical theaters and wherever there is a need for ready access to specialized anesthesia and/or surgical monitoring equipment, gases/medical air, electrical power and communication service. It consists of a ceiling plate, a suspension arm or arms, a suspension tube, a support head with electrical outlets and a platform to hold various instruments. Models of the "Orbiter" vary from a fixed height single column to a heavy duty double arm variable height suspension system. It allows for gas/medical services to be dispensed from the back of the support head. The following gas services are available and arranged to meet customer specifications: oxygen, vacuum, nitrogen, nitrous oxide, medical air, evacuation and carbon dioxide. The Orbiter is also equipped with duplex electrical receptacles and grounding plugs, data/communication service conduits and a junction box.

The Orbiter units are designed to support physiological monitoring, arthroscopy, video endoscopy and related instrumentation (by others) used during anesthesia and/or surgical procedures. Because the Orbiter units are supported from the ceiling, they provide an uncluttered floor area for more economic use of floor space and greater flexibility in operating room utilization.

The merchandise was entered under subheading 9018.19.80, HTSUS, as an accessory to patient monitoring systems. The entries were liquidated under subheading 9018.90.80, HTSUS, as an accessory to other medical, surgical, dental, or veterinary instruments and appliances.

Classification of the merchandise under subheading 9033.00.00, HTSUS, as an accessory for machines, appliances, instruments or apparatus of chapter 90 is also under consideration.

The subheadings under consideration are as follows:

9018: Instruments and appliances used in medical, surgical, dental or veterinary sciences. . . ; parts and accessories thereof:

9018.19.80: Electro-diagnostic apparatus (including apparatus for functional exploratory examination or for checking physiological parameters); parts and accessories thereof: [o]ther: [o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 4.2 percent ad valorem.

9018.90.80 Other instruments and appliances and parts and accessories thereof:[o]ther:[o]ther. . .

Goods classifiable under this provision have a general, column one rate of duty of 7.9 percent ad valorem.

9033.00.00 Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90 . . . .

Goods classifiable under this provision have a general, column one rate of duty of 4.9 percent ad valorem.

ISSUE:

Whether the Orbiter units are classifiable as an accessory to patient monitoring systems, or as an accessory to other medical, surgical, dental, or veterinary instruments and appliances, or as an accessory not specified elsewhere in chapter 90 under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

It has been suggested that the Orbiters are "accessories" which are classifiable in chapter 90. In HQ 087704, dated September 27, 1990, this office considered the classification of "accessories" under the HTSUS, and stated as follows:

The term "accessory" is not defined in either the tariff schedule or the Explanatory Notes. An accessory is generally an article which is not necessary to enable the goods with which it is used to fulfill their intended function. An accessory must be identifiable as being intended solely or principally for use with a specific article. Accessories are of secondary importance, not essential in and of themselves. They must, however, somehow contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation).

The Orbiter units are not necessary to enable the instruments with which they are used to fulfill their intended function, as the instruments would operate and handle effectively when plugged in to ordinary wall outlets. However, by placing all instrumentation on a single base, the Orbiter units facilitate the use of a room without the inconvenience of cluttering the floor with connecting cables and hoses. They also create more space around the center of activity for attendants and observers, thereby making more efficient utilization of work space. Thus, while the Orbiter units do not improve the operation of any single instrument, they contribute to the effectiveness of all the instruments with which they are used. Accordingly, it is our opinion that the units in question are "accessories" for articles of chapter 90.

Note 2 to chapter 90 governs the classification of parts and accessories for machines, apparatus, instruments or articles of chapter 90. It states that they are to be classified according to the following rules:

(a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 . . . are in all cases to be classified in their respective headings;

(b) 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 . . . are to be classified with the machines, instruments or apparatus of that kind;

(c) All other parts and accessories are to be classified in heading 9033.

The Orbiter units are not "goods included" in any chapter 84, 85, 90 or 91 heading, nor are they principally used with a number of machines, instruments or apparatus of a single chapter 90 heading. For example, the units can be used in an operating room with instruments of heading 9018, HTSUS, as well as, in an intensive care unit with instruments of heading 9019, HTSUS. Thus, it is necessary to resort to note 2(c).

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings.

With regard to note 2(c), the general EN to chapter 90, pg. 1457, states that "[p]arts or accessories suitable for use with several categories of machines, appliances, instruments or apparatus falling in different headings of this Chapter are classified in heading 90.33 . . . [emphasis in original]." In HQ 954174, dated November 23, 1993, Customs held that similar merchandise, labeled as Ceiling Services Units, were classifiable under subheading 9033.00.00, HTSUS. Like the merchandise in HQ 954174, we find that the Orbiter units are classifiable under subheading 9033.00.00, HTSUS.

HOLDING:

The Orbiters are classifiable under subheading 9033.00.00, HTSUS, which provides for parts and accessories not specified or included elsewhere in this chapter for machines, appliances, instruments or apparatus of chapter 90. The corresponding rate of duty for articles of this subheading is 4.9% ad valorem.

You should deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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