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HQ 963165




February 8, 2001

CLA-2 RR:CR:GC 963165 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 8481, 9018.39.00

Port Director
U.S. Customs Service
9 North Grand Ave.
Nogales, AZ 85621

RE: Internal Advice (21/99); foley catheter

Dear Port Director:

The following is our decision regarding your memorandum dated July 29, 1999, forwarding Internal Advice (21/99), which was initiated by letter dated May 20, 1999, by a customs broker, and seeks classification of a foley catheter and valve, under the Harmonized Tariff Schedule of the United States (HTSUS), and whether the catheter is entitled to preferential tariff treatment under the North American Free Trade Agreement (NAFTA).

FACTS:

The product is a silicone rubber foley catheter composed of NAFTA originating materials, assembled in Mexico, also containing a valve imported into Mexico from a non-NAFTA country. A foley catheter is used to drain urine from a person's bladder. The catheter is placed in the bladder through the urethra. A balloon near the tip of the catheter is inflated to retain the catheter in the bladder. The valve on the foley catheter is used as a portal for the passage of water into the retaining balloon. Water is injected into the spring-loaded valve by the use of a syringe. Once the balloon is inflated, the syringe is removed and the valve closes. This holds the water in the balloon, which prevents the catheter from falling out of the bladder. The balloon is deflated by inserting a syringe into the valve and extracting the water, thereby, allowing the catheter to be removed.

ISSUES:

Whether the valve, imported separately into Mexico, is classifiable in heading 8481, HTSUS, the provision for "[T]aps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof,"or in heading 9018, HTSUS, the provision for "[I]nstruments 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 tariff classification of the assembled foley catheter as imported into the U.S. from Mexico.

Whether the imported assembled catheter is eligible for tariff preference under the NAFTA.

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

General Note 12, HTSUS, entitled the "North American Free Trade Agreement", states in pertinent part, the following:

(b) For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if-- (ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or . . . .

General note 12(t)/ 90.44 states "A change to subheadings 9018.20 through 9018.50 from any other heading."

The HTSUS headings under consideration for classification of the valve are as follows:

8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof:

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:

Chapter note 2(a) to Chapter 90, HTSUS, states "[P]arts and accessories which are goods included in any of the headings of this Chapter or of Chapter 84, 85, or 91(other than headings 8485, 8548 or 9033) are in all cases to be classified in their respective headings." The valve is eo nomine described in heading 8481, HTSUS, as a "valve." EN 84.81 includes a broad range of types of valves. The EN specifically mentions valves that operate by means of a spring and that are made of plastic which describes the instant merchandise. Therefore, by operation of note 2(a) to Chapter 90, the valves, as imported separately into Mexico, are classified in heading 8481, the provision for "[T]aps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof." (See also HQ 961830, dated October 2, 1998).

The assembled foley catheter, as imported into the U.S., with the valve in place, is provided for under heading 9018, HTSUS. Chapter note 1 of Chapter 90 specifically excludes "(a)[A]rticles . . . of vulcanized rubber other than hard rubber . . . ." The silicone rubber material of the catheter is not "vulcanized rubber other than hard rubber." Hence, the catheter is eo nomine provided for under subheading 9018.39.00, HTSUS, as "[I]nstruments 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: [S]yringes, needles, catheters, cannulae and the like; parts and accessories thereof: [O]ther." (emphasis added).

Thus, the valve has undergone the required tariff shift transformation in Mexico, to subheading 9018.39 from any other heading (8481), to warrant tariff treatment as "goods originating in the territory of a NAFTA party." (General Note 12(b)(ii)(A)). Goods originating in Mexico are exempted from the merchandise processing fee if entered or released after June 29, 1999. (See 19 C.F.R. ยง24.23(c)(3)).

HOLDING:

The valve, imported separately into Mexico, is classified in heading 8481, HTSUS, the provision for "[T]aps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof." The fully assembled foley catheter, as imported into the U.S., is classified in subheading 9018.39.00, HTSUS, as "[I]nstruments 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: [S]yringes, needles, catheters, cannulae and the like; parts and accessories thereof: [O]ther." The assembled foley catheters are therefore "goods originating in the territory of a NAFTA party." Assuming a proper claim is made, tariff treatment should be rendered accordingly.

You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other public methods of distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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