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HQ H006419




May 2, 2007

CLA-2 OT:RR:CTF:TCM H006419 IDL

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.39.00

Eleanore Kelly-Kobayashi
Rode & Qualey
Attorneys at Law
55 West 39th Street
New York, NY 10018

RE: BD Vacutainer® Rapid Serum Tube

Dear Ms. Kelly-Kobayashi:

This is in response to your request for a ruling on behalf of your client, Becton Dickinson & Company, addressed to the National Commodity Specialist Division, U.S. Customs and Border Protection (CBP), and which we received on January 3, 2007. Your request for a binding ruling on the classification of a “BD Vacutainer Rapid Serum Tube” under the Harmonized Tariff Schedule of the United States (HTSUS) has been forwarded to this office. Our ruling on this matter is set forth below.

FACTS:

The “BD Vacutainer® Rapid Serum Tube” (“RST”) is an evacuated and sterile plastic tube with a Hemogard® closure. The tube is coated with a gel and contains an additive that accelerates the clotting of blood. The blood is drawn and the additive (thrombin plus other ingredients) causes the blood to clot in a significantly reduced timeframe from normal.

Evacuation enables the collection of a pre-defined amount of blood. The gel enables separation of the blood into serum and platelets. The RST is a new product that will be used for “investigational” purposes only. You submitted a sample of the RST.

ISSUE:

Whether the RST is classified under subheading 9018.39.00, HTSUS, or under subheading 9018.90.80, HTSUS?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 6 provides that “for legal purposes”, classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

There is no dispute that the RST is classified under heading 9018, as “[i]nstruments and appliances used in medical, surgicalsciences.” The issue involves only the subheading that describes the RST. The HTSUS provisions under consideration are as follows:

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:

Syringes, needles, catheters, cannulae and the like; parts and accessories thereof:

9018.39.00 Other

Other instruments and appliances and parts and accessories thereof:

Other:

9018.90.80 Other

The ENs are supportive of the classification of the RST under heading 9018, HTSUS (EN 90.18, XVIII-9018-1). The ENs state:

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.

This group includes[i]nstruments which may be used under the same names for several purposes[include] cannulae,suction tubes [, and]syringesof all kinds, e.g.,suction (with or without pump).

As the RST is used to draw blood and functions similarly to cannulae, suction tubes, and syringes, we find that the RST is covered by the provisions of subheading 9018.39.00, HTSUS. This finding is consistent with the provisions of EN 90.18.

We note that the Harmonized System Committee, at its 37th session, examined the classification of certain evacuated tubes with and without chemical additives under the Harmonized System. The Committee found that both types of tubes were classified under subheading 9018.39. See Annex H/9 to Doc. NC1059 (HSC/37/March 2006). At its 38th session, following a reservation by a contracting member of the Harmonized System, the Committee affirmed its previous decision in classifying the tubes under subheading 9018.39, and instructed the Secretariat to prepare a classification opinion. See Annex G/6 to Doc. NC1123 (HSC/38/Oct. 2006). That classification opinion was approved by the Committee at its 39th session, as C.O 9018.39/1 and C.O. 9018.39/2. See Annex O/19 to Doc. NC1178 (HSC/39/March 2007).

Accordingly, our decision to classify the RST under subheading 9018.39.00, HTSUS, is in accordance with international views as to the classification of this type of product.

HOLDING:

By application of GRIs 1 and 6, the RST is classified in heading 9018, HTSUS, and provided for under subheading 9018.39.00, HTSUS, as: “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: Syringes, needles, catheters, cannulae and the like; parts and accessories thereof: Other”. The column one, general rate of duty is “Free”.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usits.gov/tata/hts/.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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