CLA-2 CO:R:C:G 085366 AJS
TARIFF NO: 9018.90.60; 9018.90.70
Ms. Elaine Jacoby
Manager
Miles, Hastings & Joffroy Inc.
Customhouse Brokers
6403 Avenida Costa Norte
Suite 3000
Otay Mesa, California 92073
RE: Tube string subassembly
Dear Ms. Jacoby:
Your letter of August 9, 1989, requesting a tariff
classification on behalf of your client Davis & Geck, has been
referred to this office for reply.
FACTS:
The article in question is a tube string subassembly of the
Vital Vue Irrigation, Suction, and Illumination System Disposable
Surgical Instrument (Vital Vue). The subassembly consists of
three lengths of plastic tubing bonded together to form separate
channels for irrigation, suction, and electrical wires for the
light power source. In addition, it contains a threaded suction
adapter, a spike connector with protective cap, and a small
telephone type electrical connector. The subassembly is also
equipped with a small light bulb, which contains a thermistor
designed to shut off the bulb when it becomes too hot.
ISSUE:
Whether the article in question is properly classifiable
within subheading 9018.90.60, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), which provides for
"[i]nstruments and appliances used in medical, surgical, dental
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or veterinary sciences . . . parts and accessories thereof:
[o]ther instruments and appliances and parts and accessories
thereof: [o]ther: [e]lectro-medical instruments and appliances
and parts and accessories thereof: [e]lectro-surgical
instruments and appliances . . . all the foregoing and parts and
accessories thereof."; or within subheading 9018.90.70, HTSUSA,
which provides for other electro-medical instruments and
appliances.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 provides
that classification is determined first in accordance with the
terms of the headings of the tariff and any relative section or
chapter notes.
Heading 9018, HTSUSA, provides for instruments and
appliances used in medical, surgical, and veterinary sciences.
The submitted literature states that the Vital Vue is used in a
wide variety of surgical situations. The article in question is
clearly described by the terms of this heading.
Subheading 9018.19.40, HTSUSA, provides for "[e]lectro-
diagnostic apparatus . . . parts and accessories thereof:
[o]ther: [a]pparatus for functional exploratory examination, and
parts and accessories thereof." Explanatory Note (EN)
90.18(IV)(1) describes the type of equipment included in the
electro-diagnostic apparatus subheading. The Vital Vue is not
described within this note. The submitted literature also does
not claim that the article in question is used for diagnostic
purposes. Therefore, the tube string assembly is excluded from
coverage within this subheading.
Subheading 9018.90.60, HTSUSA, provides for electro-medical
instruments and appliances. EN 90.18(IV)(6) lists electro-
surgical apparatus as a type of electro-medical apparatus.
Electro-surgical apparatus "utilize high frequency electric
currents, the needle, probe, etc., forming one of the
electrodes. They can be employed to cut tissues (electrocutting)
with a lancet (electric lancet), or to coagulate the blood
(electrocoagulation). Certain combined instruments may, by the
use of control pedals, be made to act interchangeably as
electrocutters or electrocoagulators." EN 90.18(IV)(6). This
example identifies only one type of electro-surgical apparatus
and should not be considered exclusive.
Customs has previously ruled that the provision for electro-
cutting and electro-coagulation is not dispositive of
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Congressional intent regarding the scope of electro-surgical
apparatus. HQ 054332 (1980). This ruling classified an
electrical modular system designed to be used for life support
in coronary surgery within the provision for electro-surgical
apparatus. While this decision was issued under the Tariff
Schedules of the United States (TSUS) and therefore is not
binding, it can still be considered instructive in interpreting
the HTSUSA. H. Rep. No. 100-576, 100th Cong., 2D Sess. 1580
(1988) at 1582.
In addition, Customs has previously classified parts of a
surgical illumination system as parts of electro-surgical
apparatus. CIE 2198/65. We find these previous rulings
instructive in determining the scope of the term "electro-
surgical apparatus".
You claim that the article as a whole does not satisfy the
description of "electrical". This conclusion is predicated on
the argument that although the illumination function is
"electrical", the system as a whole is not "electrical" because
neither the irrigation nor suction functions are "electrical".
The Customs Court rejected this reasoning in Empire Findings
Co., v United States (Empire), 44 Cust. Ct. 21, C.D. 2148 (1960).
Empire held a medical instrument electrical when the electrical
element was an essential feature without which the article could
not function for its intended purpose. The device at issue in
Empire was used for illumination, drainage and the introduction
of medication. These functions are almost exactly, if not
identical to the illumination, irrigation and suction functions
of the Vital Vue. Therefore, the article in question is
"electrical" based on the fact that its illumination function is
an essential feature without which the Vital Vue could not
function for its intended purpose.
You also claim that the definition of the term "electrical"
in Chapter 90, Additional U.S. Note 2 applies to the articles
under consideration. The term "electrical" in this note only
refers to apparatus which involve the measurement of electrical
phenomenon. There are many other types of electrical apparatus,
of which the Vital Vue is one, which do not involve the
measurement of electrical phenomenon. To rule that an article
cannot be considered "electrical" because it does not measure an
electrical phenomenon would also contradict rulings such as
Empire. Thus, this note does not apply to the articles in
question.
Tariff terms are to be construed in accordance with their
common and commercial meaning. Nippon Kogaku (USA), Inc. v.
United States, 69 CCPA 89, 673 F.2d 380 (1982). When determining
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the common meaning of a term, courts may consult dictionaries,
lexicons, scientific authorities, and other reliable sources as
an aid. C.J. Tower & Sons v. United States, 69 CCPA 128, 673
F.2d 1268 (1982). The term "electro" is defined as "[a]
combining form of electric or electricity . . . Also,
esp[ecially] before a vowel, electr-." The Random House
Dictionary of the English Language, at 459 (1983). The word
"electric" is defined as "[p]ertaining to, derived from, produced
by, or involving electricity" or "[p]roducing, transmitting, or
operated by electric currents." Id. The article in question
satisfies the above descriptions of "electro" and "electric".
The term "surgical" is defined as "of, pertaining to, or
correctable by surgery". Dorland's Illustrated Medical
Dictionary, 27th Ed., at 1617 (1988). The term "surgery" is
defined as the treatment of disease by manual or operative
methods. Id. The article in question is used in a wide variety
of surgical procedures, and is therefore "pertaining to" surgery.
Based on the above definitions, the term "electro-surgical
apparatus" commonly means a surgical device operated by or
involving electricity.
Parts and accessories for the apparatus of Chapter 90 are
classifiable in their respective heading or with the apparatus
for which they are solely or principally used. Chapter 90, Notes
2(a) & (b). The tube string subassembly is used solely with the
Vital Vue System. There is no respective heading for these
subassemblies. Thus, the article in question is classifiable
with the Vital Vue System as a part of an electro-surgical
apparatus.
HOLDING:
The tube string subassembly in question is classifiable
within subheading 9018.90.60, HTSUSA, which provides for parts
and accessories of electro-surgical apparatus. These items are
dutiable at 7.9 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division