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HQ 957817




December 1, 1995

CLA-2 RR:TC:MM 957817 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.90.80

S. Richard Shostak, Esq.
Stein Shostak Shostak & O'Hara
515 South Figueroa Street, Suite 1200
Los Angeles, California 90071-3329

RE: NY 895684 modified; "Accuset" and "Gemini" intravenous solution administration sets; 9018.90.75; parts and accessories of other electro-medical instruments; other medical instruments and appliances; parts; accessories; EN 90.18; Travenol Laboratories, Inc.; HRLs 085366, 085088, 087704, 955025, 955650 and 951857; Note 2(a) and (b), Chapter 90; GRI 1 and 3(a); relative specificity

Dear Mr. Shostak:

This is in regards to your letter dated April 6, 1995, on behalf of Cal Pacifico and IMED Corporation, requesting reconsideration of New York (NY) 895684 dated April 15, 1994, in which the Area Director of Customs, New York Seaport, classified the "Accuset" intravenous solution administration sets as parts and accessories of other electro-medical instruments and appliances under subheading 9018.90.75, Harmonized Tariff Schedule of the United States (HTSUS), and the "Gemini" intravenous solution administration sets as other medical instruments and appliances under subheading 9018.90.80, HTSUS. Specifically, your reconsideration request only concerns the tariff classification of the "Gemini" intravenous solution administration sets. Samples were submitted for our examination. Information submitted at a meeting on August 16, 1995, was taken into consideration in rendering this decision.

Pursuant to ?625(c)(1), Tariff Act of 1930 (19 U.S.C. Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed modification of NY 895684 was published on October 11, 1995, in the Customs Bulletin, Volume 29, Number 41. Three comments were received in response to this notice. Our analysis of the comments is set forth in the LAW AND ANALYSIS section of this ruling.

FACTS:

In NY 895684 the Area Director of Customs, New York Seaport, classified the "Accuset" intravenous solution administration sets ("Accuset" sets) as parts and accessories of other electro-medical instruments and appliances under subheading 9018.90.75, HTSUS. NY 895684 found that the "Gemini" intravenous solution administration sets ("Gemini" sets) could operate by gravity as any other standard intravenous solution administration sets and therefore, classified the "Gemini" sets as other medical instruments and appliances under subheading 9018.90.80, HTSUS. Additionally, NY 895684 held that these sets were not eligible for preferential tariff treatment under the North American Free Trade Agreement (NAFTA) pursuant to General Note 12(b)(iv)(B), HTSUS. However, in Headquarters Ruling Letter (HRL) 956751 dated October 12, 1995, for purposes of NAFTA, we held that the "Accuset" and "Gemini" sets were both considered "originating goods" pursuant to General Note 12(b)(iv)(B), HTSUS, upon meeting the applicable value content requirement and all other applicable requirements. As HRL 956751 dealt solely with the NAFTA issue, it assumed the classification of the "Accuset" and "Gemini" sets in NY 895684 were correct.

You state that the classification of the "Accuset" sets under subheading 9018.90.75, HTSUS, in NY 895684 and HRL 956751, is correct. You now contend that the "Gemini" sets are also classified under subheading 9018.90.75, HTSUS, as parts and accessories of other electro-medical instruments and appliances . Although your reconsideration request concerns only the "Gemini" sets, it is our opinion that an examination of both the "Gemini" and "Accuset" sets is necessary.

The articles under consideration are the "Accuset" and "Gemini" intravenous solution administration sets which are disposable I.V. tubing assemblies used in the medical industry for infusions. Both intravenous solution administration sets are composed of a drip chamber, Y site, slide clamp, roller clamp, luer adapter and protection cap. The "Accuset" set has an additional component, a cassette, which will fit into an electronic infusion pump. A section of the tubing in the "Gemini" set is made of silicon rubber which is more resilient than plastic and is suitable for use with the type of pump which regulates the flow of liquid by compressing and releasing the silicon tubing. You contend that the "Accuset" and "Gemini" sets are designed, function, marketed and used with pumps, and, therefore, are to be classified as parts or accessories of the pumps.

ISSUE:

Are the "Accuset" and "Gemini" sets classified under subheading 9018.90.75, HTSUS, as parts and accessories of other electro-medical instruments and appliances, or under subheading 9018.90.80, HTSUS, as other medical instruments and appliances?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, states:

...for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions [the remaining GRIs].

The subheadings at issue are as follows:

9018.90 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...

9018.90.75 Other...Electro-medical instruments and appliances and parts and accessories thereof...Other...Other....

9018.90.80 Other...Other.

You contend that the "Accuset" and "Gemini" sets are classifiable as parts or accessories of an electro-medical instrument under heading 9018, HTSUS. It is our opinion that the "Accuset" and "Gemini" sets are not classifiable as parts or accessories of the pump, but as medical instruments and appliances under heading 9018, HTSUS.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 90.18, pgs. 1487-1493, states that:

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.

EN 90.18 proceeds to list numerous exemplars of the type of medical instruments and appliances which are classifiable under heading 9018, HTSUS, including needles, surgical knives, catheters, suction tubes, syringes, intratracheal tubes, intubation tubes, blood transfusion apparatus. We believe that the intravenous solution administration sets are similar to the type of medical instruments and apparatus listed in EN 90.18 and they are medical instruments and apparatus used by doctors to treat an illness or operate. Moreover, intravenous solution administration sets have been classified as medical instruments or appliances. See, Travenol Laboratories, Inc., v. United States, C.D. 4812 (1979), which classified an intravenous solution administration sets under item 709.27, Tariff Schedules of the United States (TSUS)(the precursor tariff provision to subheading 9018.90.80, HTSUS), as other medical, dental, surgical and veterinary instruments, etc.

In HRL 085088 dated March 12, 1990, we considered the classification of an I.V. solution administration sets, which consisted of 49 inches of plastic tubing, with a drip chamber and spike at one end, and a needle adapter with a protective covering at the other end. The I.V. administration set was used for the intravenous application of medication, blood serum, glucose intravenous solution and sodium chloride intravenous solution. We determined that the set was not classifiable as an electro-medical instrument, nor a part or an accessory of an electro-medical instrument, but as a medical instrument or appliance under subheading 9018.90.80, HTSUS. In reaching this conclusion, we stated as follows:

The I.V. Administration Set in question is not an electro-medical instrument or appliance, since it does not operate by using electricity. Since the electrical functioning of a dialysis machine does not depend upon the use of an I.V. Administration Set, the I.V. Administration Set is not a part of such a machine. Nor is the I.V. Administration Set an accessory of an electro-medical instrument, since the set does not supplement or assist the functioning of the machine. An I.V. Administration Set is merely the disposable conduit through which blood flows between the patient and the machine. The set is used once and then thrown away. Such a conveyance system is not a part or an accessory.

Similarly, the "Accuset" and "Gemini" sets under consideration, though designed for use with pumps, cannot be classified as a part of the pump. Generally, a part of an article "must be an internal, constituent or component part, without which the article to which it is joined could not function." See, HRL 951857 dated August 14, 1992. The pump's function is to move liquid from a source bag or bottle to a patient. Although, the pumps cannot move liquid without the sets and a source bag or bottle with liquid attached, it is our opinion that the pumps are a complete machine.

One commenter states that HRL 955650 dated March 14, 1994, HRL 955025 dated April 29, 1994, and HRL 085366 dated December 4, 1989, support its position that a complete and separate article, such as the intravenous solution administration sets, can be classified as a part.

In HRL 955650, we considered the classification of bite-wing tabs made of foamed polyurethane plastics, which are used to hold X-ray film in place in the pertinent's mouth while an X-ray of the teeth is taken. In HRL 955025, we considered the classification of the Octostop II Pediatric Immobilization System, which is principally used with X-ray apparatus to maintain a child in a fixed position. Both the bite-wing tabs and the immobilization system were classified according to Note 2(b), Chapter 90, HTSUS, under subheading 9022.90.60, HTSUS, which provides for parts and accessories of apparatus based on the use of X-rays.

The bite-wing tabs and immobilization system were not classified as medical instruments or appliances under heading 9018, HTSUS, because we determined that neither was used "to make a diagnosis, to prevent or treat an illness or to operate, etc." Although peripherally related to such uses, the bite-wing tabs and immobilization system are not similar in function to the extensive list of devices found in EN 90.18. Moreover, because the devices are not themselves "based on the use of X-rays," nor similar to the devices listed in heading 9022, HTSUS, they could not be classified as X-ray apparatus under heading 9022, HTSUS.

In HRL 085366, we classified a tube string subassembly of the Vital Vue Irrigation, Suction, and Illumination System Disposable Surgical Instrument ("Vital Vue"), as a part of electro-surgical apparatus under subheading 9018.90.60, HTSUS. The commenter contends that if we classify the intravenous solution administration sets as a medical instrument or appliance under heading 9018, HTSUS, we must similarly classify the tube string subassembly as a medical instrument or appliance.

The tube string subassembly is a component part of the Vital Vue surgical instrument, which is used with the Vital Vue System. The complete, Vital Vue surgical instrument would be classified as a medical instrument or appliance. The tube string subassembly, however, is an assembly of the medical instrument or appliance (as the intravenous solution administration set's "cassette" is an assembly of the intravenous solution administration set). Accordingly, it was properly classified as a part thereof under subheading 9018.90.60, HTSUS.

To further the position that the pump is a complete machine without the intravenous solution administration sets, we set forth the following analogy in the proposed modification:

However, as a photographic camera is a complete machine without the film, the pumps are a complete machine without the "Accuset" or "Gemini" sets. A camera's components, such as the shutter release, film advance lever, rewind knob and viewfinder eyepiece, function without the addition of the film. Similarly, the components of the pump function without the addition of the "Accuset" or "Gemini" sets. A photographic camera, when imported without film, is classified according to GRI 1, HTSUS, under heading 9006, HTSUS (photographic cameras), rather than as a GRI 2(a), HTSUS, "incomplete or unfinished" articles. The pumps, if imported without the "Accuset" or "Gemini" sets, would be classified according to GRI 1, HTSUS, under heading 9018, HTSUS (medical apparatus). Therefore, it is our opinion that the "Accuset" and "Gemini" sets are not classified as parts of the pumps under subheading 9018.90.75, HTSUS.

Two comments stated that the above camera analogy does not apply to the intravenous solution administration sets. The comments state that film is not classified as "parts" of cameras; not because the film and camera are complete and separate articles, but because the film is identified eo nomine in the HTSUS. They further state that relative specificity doctrine set forth in GRI 3(a), HTSUS, firmly establishes that an eo nomine tariff provision for an article takes precedence over a "parts" provision, but that a "parts" provision does not take precedence over a "basket" provision. Therefore, the commenters contend that since subheading 9018.90.80, HTSUS, is the basket provision of heading 9018, HTSUS, the intravenous solution administration sets should be classified as "parts" under subheading 9018.90.75, HTSUS. As discussed below, it is our opinion that we do not need to resort to the doctrine of relative specificity in GRI 3(a), HTSUS.

Alternatively, you contend that the "Accuset" and "Gemini' sets are accessories to the pumps, and are classifiable under subheading 9018.90.75, HTSUS. The term "accessory" is not defined in either the HTSUS or the ENs. 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 or subordinate 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.) See, HRL 087704 dated September 27, 1990, and HRL 951857.

As stated in HRL 085088, it is our opinion that disposable intravenous solution administration sets which serve as a conduit through which blood flows between the patient and the machine are medical instruments or appliances in and of themselves and, therefore, are classified under subheading 9018.90.80, HTSUS. Generally, they are not classified as accessories of the pumps. However, in this case the "Accuset" and "Gemini" sets, by their design do appear to facilitate the use of the pumps. Features such as the cassette in the "Accuset" set and the silicon tubing and "Flo-Stop" slide clamp of the "Gemini" set, help regulate the rate and flow of liquid passing through the pump. Therefore, they are also viewed as accessories to the pumps.

In this situation, where the "Accuset" and "Gemini" sets are classifiable as medical instruments and apparatus and as accessories of pumps, Note 2, Chapter 90, HTSUS, which states that:

...parts and accessories for machines, apparatus, instruments or articles of this chapter 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 (other than heading 8485, 8548 or 9033) 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 (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....

It is our position that pursuant to Note 2(a), Chapter 90, HTSUS, as the "Accuset" and "Gemini" sets are classifiable as medical instruments and apparatus in heading 9018, HTSUS, they must be so classified, regardless of whether they are also classifiable as accessories of pumps. Therefore, pursuant to Note 2(a), Chapter 90, HTSUS, the "Accuset" and "Gemini" sets are classified under subheading 9018.90.80, HTSUS, as other medical instruments and appliances.

However, the comments contend that the doctrine of relative specificity in GRI 3(a), HTSUS, establishes classification of the intravenous solution administration sets as accessories under subheading 9018.90.75, HTSUS. GRI 3, HTSUS, states "[w]hen...goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description..."

Thus, an eo nomine tariff provision for an article takes precedence over an "accessories" provision, but that an "accessories" provision does not take precedence over a "basket" provision. Therefore, the commenters contend that since subheading 9018.90.80, HTSUS, is the basket provision of heading 9018, HTSUS, the intravenous solution administration sets should be classified as "accessories" under subheading 9018.90.75, HTSUS.

It is our opinion that resorting to GRI 3(a), HTSUS, in this situation is incorrect. GRI 1, HTSUS, states that "...for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions [the remaining GRIs, including GRI 3(a)]." Thus, classification is determined according to the headings and the section or chapter notes, and if the section or chapter notes do not otherwise require, according to the remaining GRIs. In this case, Note 2, Chapter 90, directs classification of the intravenous solution administration sets such that we do not need to proceed to the remaining GRIs.

Note 2(a), Chapter 90, HTSUS, states that accessories which are goods included in any of the headings of chapter 90, 84, 85 or 91 are in all cases to be classified in their respective headings. In this case, the intravenous solution administration sets are goods included in heading 9018, HTSUS, as medical instruments and appliances. Heading 9018, HTSUS, also includes the accessories of medical instruments and appliances. However, this does not negate the use of Note 2(a), Chapter 90, HTSUS. Note 2(a), Chapter 90, HTSUS, states that the classification of the intravenous solution administration sets proceeds under heading 9018, HTSUS, as medical instruments and appliances. Therefore, we proceed through the six-digit and eight-digit classification as medical instruments and appliances to classification under subheading 9018.90.80, HTSUS, as other medical instruments and appliance. We do not proceed to Note 2(b), Chapter 90, HTSUS, or to GRI 3(a), HTSUS. Classification of the intravenous solution administration sets is made pursuant to GRI 1, HTSUS, and Note 2(a), Chapter 90, HTSUS.

HOLDING:

The "Accuset" and "Gemini" intravenous solution administration sets are classified under subheading 9018.90.80, HTSUS, as other medical instruments and appliances. Articles classified under this tariff provision are dutiable at the Column 1 rate of 6.3% ad valorem.

EFFECT ON OTHER RULINGS:

NY 895684, issued April 15, 1994, is modified as set forth above. In accordance with 19 U.S.C. ?1625(c)(1), this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. ?1625(c)(1) does not constitute a change of practice or position in accordance with ?177.10(c)(1), Customs Regulations

Sincerely,

John Durant, Director
Tariff Classification Appeals

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