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HQ 557669




March 3, 1994

CLA-2 CO:R:C:S 557669 WAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96; 9018.90.7070

Ms. Cindy Bell
COBE Laboratories, Inc.
1185 Oak Street
Lakewood, Colorado 80215-4407

RE: Eligibility for duty-free treatment under subheading 9817.00.96, HTSUS, of Bicart cartridges from Sweden; parts

Dear Ms. Bell:

This is in reference to your letter dated October 27, 1993, concerning the eligibility for duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), of Bicart cartridges from Sweden.

FACTS:

You state that the Bicart cartridge is an integral component of a dialysis machine. The machine's sole function is the treatment of chronic renal disease through kidney dialysis in order to relieve the discomfort caused by the disease and allow persons afflicted by the disease to lead more normal lives. The cartridge consists of a plastic cartridge filled with 650 grams of sodium bicarbonate powder (USP and Eur Ph. Grade). The powder mixes with sterile solution during the dialysis process to facilitate the removal of impurities from the blood. You have enclosed literature on the Bicart cartridge for our review.

ISSUE:

Whether the bicart cartridge is eligible for duty-free treatment under subheading 9817.00.96, HTSUS, when entered into the U.S.

LAW AND ANALYSIS:

Annex E of the Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established duty-free treatment for certain articles for the handicapped. The primary focus for this agreement was to facilitate the international distribution of articles for the educational, scientific, or cultural advancement of the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol (Annex E) ("Nairobi Protocol") under subheading 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. These tariff provisions specifically state that "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons" are eligible for duty-free treatment.

The proper classification of the bicart cartridges is in subheading 9018.90.7070, HTSUS, which provides for "[i]nstruments and appliances used in medical, surgical, dental or veterinary sciences, . . . Other instruments and appliances and parts and accessories thereof: Other: Electro-medical instruments and appliances and parts and accessories thereof: Other: Parts and accessories of dialysis instruments and apparatus."

U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, states that, "the term 'blind or other physically or mentally handicapped persons' includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working." Clearly, individuals who suffer from kidney failure are physically handicapped as defined by this tariff provision.

Customs has previously ruled that the subheadings which encompass the Nairobi Protocol apply to "articles" and not "parts" of articles. See Headquarters Ruling Letters (HRLs) 087559 dated October 9, 1990, and 086303 dated February 13, 1990. The conclusions reached in these rulings were simply a restatement of the well-established principle of Customs law, reiterated by the courts, "that a tariff provision which does not specifically provide for parts does not include parts." Westminster Corp. v. United States, 432 F. Supp. 1055, 1058 (1977), Glass Products, Inc. v. United States, 641 F. Supp. 813, 815 (CIT 1986), Murphy & Co. v. United States, 13 Ct. Cust. App. 256, T.D. 41201 (1925). As the Court in Westminster further elaborated, "Congress, in enacting legislation, would have provided for parts in [a] provision had it so intended."

Whether particular merchandise is considered a "part" for tariff purposes has been the subject of judicial examination. The traditional rule in this regard is "that a 'part' of an article is something necessary to the completion of that article. It is an integral part, . . . , without which the article to which it is joined could not function as such article." United States v. Willoughby Camera Stores, Inc., 21 CCPA 332, T.D. 56851 (1933), cert denied, 292 U.S. 640, 54 S.Ct. 773, 78 L.Ed. 1492 (1933). However, since a determination regarding whether an item constitutes a "part" is highly fact specific, the courts have modified this standard over the years.

The courts have held that "the mere fact that two articles are designed to be used together is not alone sufficient to establish that either is a part of the other, or of their combined entity." Westfield Manufacturing Company v. United States, 191 F. Supp. 578 (1961). In addition, the courts have stated that "[m]any . . . objects, despite the fact that their usefulness is only in conjunction with other articles, retain a separateness of identity and a functional self-sufficiency which preclude their classification as parts. Furthermore, if an article possesses the characteristics of a completely finished and self-contained object. . .," it will not be considered a "part." Schick X-Ray Co. v. United States, 271 F. Supp. 305 (1967). Similarly, Customs has held that a "part" must be identifiable by shape or other characteristics as an article solely or principally used as a "part." See HRL 086835 dated April 17, 1990.

We are of the opinion that the bicart cartridges in their condition as imported are parts and, therefore, are ineligible for duty-free treatment under subheading 9817.00.96, HTSUS. The cartridges are classified in a subheading which provides for parts of dialysis machines. Moreover, the bicart cartridge is an integral component of the dialysis machine, without which the machine could not function. The literature describing the operation of the bicart cartridge states that "[w]hen attached to the holder, the bicart becomes integrated with the continuous fluid flow-path." When attached to the dialysis machine, water from the fluid monitor passes through the bicart cartridge, thus producing a saturated bicarbonate solution, which during the dialysis process facilitates the removal of impurities from the blood. There is no separateness of identity between the cartridge and the dialysis machine; the cartridge cannot function without being integrated into the machine.

You claim that you are entitled to duty-free treatment under 9817.00.96, HTSUS, based on the recent case Travenol Laboratories, Inc. v. United States, Slip Op. 93-15 dated February 24, 1993 (27 Cust. Bull. 1). In Travenol, the plaintiff imported medical devices used in dialysis treatments of individuals with End-stage renal Disease. The plaintiff claimed that the merchandise was entitled to duty-free entry under the Nairobi Protocol as "articles specially designed or adapted for the use and benefit of the blind or other physically or mentally handicapped persons." Customs argued that the medical devices were "therapeutic" articles which are specifically excluded from receiving duty-free treatment under the Nairobi Protocol.

In rendering its decision, the court in Travenol followed the reasoning in Richards Medical Company v. United States, 13 CIT 519, 720 F. Supp. 998 (19890, aff'd, 910 F.2d 828 (Fed. Cir. 1990), and found that although there was evidence to support the finding that kidney dialysis is life-sustaining, that process was not "curative", which is the standard the courts have chosen to equate with the tariff meaning of "therapeutic." Therefore, the court held that the imported articles were entitled to duty-free treatment. In Travenol, unlike the instant case, the entire electric dialysis machine was being imported into the U.S. Therefore, the court did not address the question of whether a "part" of a dialysis machine, if imported separately, would qualify for duty-free treatment under the Nairobi Protocol. Therefore, we do not believe that the Travenol case stands for the proposition that "parts" of dialysis machines are entitled to the same duty-free treatment under this provision as the entire dialysis machine.

HOLDING:

The proper classification of the bicart cartridges is in subheading 9018.90.7070, HTSUS, which provides for "[i]nstruments and appliances used in medical, surgical, dental or veterinary sciences, . . . Other instruments and appliances and parts and accessories thereof: Other: Electro-medical instruments and appliances and parts and accessories thereof: Other: Parts and accessories of dialysis instruments and apparatus," dutiable at a rate of 4.2 percent ad valorem. As the bicart cartridges constitute parts of dialysis machines, they are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

Sincerely,

John Durant, Director

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