CLA-2 CO:R:C:M 950248 KCC
Ms. Mary Ann Markoski
Radiometer America Inc.
811 Sharon Drive
Westlake, Ohio 44145
RE: Capillary Blood Sampling Kits; reconsideration of
863381 and 863377; GRI 3(b); sets; EN X to GRI 3(b);
essential character; EN VIII to GRI 3(b); heading 9027;
Note 1(d), Chapter 90
Dear Ms. Markoski:
This is in reference to your letter dated July 30, 1991,
requesting reconsideration of pre classification rulings 863381
dated June 19, 1991 and 863377 dated July 8, 1991, concerning
the tariff classification of capillaries under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
Pre classification rulings 863381 and 863377 classified
capillaries under subheading 7017.10.00, HTSUS, which provides
for laboratory glassware, of fused quartz or other fused silica,
or under subheading 7017.90.00, HTSUS, as laboratory glassware,
other, depending upon the type of glassware used in the
manufacture of the capillaries.
You state that the above referenced pre classification
rulings were based on incorrect facts. You state that the
articles under consideration were not just capillaries, but are
kits containing capillaries. Specifically, the kits contain the
following:
1) heparinized glass capillaries;
2) capillary caps;
3) mixing wires;
4) magnet (optional); and
5) instructions.
The kits are used to prepare and aspirate a sample into a
blood analyzer. The capillaries are prepared with sodium
heparinate to prevent coagulation. In the sampling procedure, a
capillary cap is loosely mounted on one end of a tube and a
mixing wire is inserted. After the patient's skin is punctured,
the tube is filled with blood and the other end of the capillary
is capped. The blood and the anticoagulant are mixed by moving
the mixing wire along the length of the tube approximately 20
times with a magnet. The blood can then be aspirated into the
analyzer. You provided an approximate breakdown of the imported
cost of kit #904-448 as follows:
50 capillaries $ 8.25
120 capillary caps $ 3.40
60 mixing wires $ 2.20
1 magnet $ 4.85
Total $18.70
You contend that the kits should be classified under subheading
9027.90.40, HTSUS, as parts and accessories of instruments or
apparatus for physical or chemical analysis.
ISSUE:
What is the proper tariff classification of the capillary
blood sampling kits under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...." When goods are prima
facie classifiable under two or more headings GRI 3 is
applicable. In this case classification is determined by
application of GRI 3(b) which provides:
Goods put up in sets for retail sale, shall be
classified as if they consisted of the component which
gives them their essential character.
To determine what is a "set put up for retail sale" the
Explanatory Notes (EN) of the Harmonized Commodity Description
and Coding System (HCDCS) may be utilized. EN X to GRI 3(b)
provides a three part test for "goods put up in sets for retail
sale":
For the purposes of this Rule, the term 'goods put up
in sets for retail sale' shall be taken to mean goods
which:
(a) consist of at least two different articles which
are prima facie, classifiable in different
headings;
(b) consist of products or articles put up together to meet
a particular need or carry out a specific activity;
and
(c) are put up in a manner suitable for sale directly to
users without repacking (e.g., in boxes or cases or on
boards).
HCDCS, Vol. 1, p. 4. The Explanatory Notes, although not
dispositive, are to looked to for the proper interpretation of
the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In
general, essential character has been construed to mean the
attribute which strongly marks or serves to distinguish what an
article is; that which is indispensable to the structure, core or
condition of the article. In addition, EN VIII to GRI 3(b)
provides further factors which determine the essential character
of goods. Factors such as bulk, quantity, weight or value, or
the role of a constituent material in relation to the use of the
goods are to be utilized, though the importance of certain
factors will vary between different kinds of goods. HCDCS, Vol.
1, p. 4.
In the present situation, a capillary blood sampling kit
consists of three or four different articles, each having
different classifications. The articles are put up together to
prepare and aspirate a sample of blood into an analyzer. The
various articles for the kit are packaged together for sale to
the end user. Thus, the capillary blood sampling kit is a set.
We are of the opinion that the essential character of the
capillary blood sampling kit lies in the capillaries. The
capillaries constitute the greatest cost associated with the kit.
The capillaries are the main feature of the kit as they are
designed to hold the blood sample and facilitate the aspiration
of the sample into the blood analyzer. The sodium heparinate
contained in the capillaries merely facilitates the flow of the
blood sample. The sodium heparinate does not affect the outcome
of the analytical process. You stated that all of the
capillaries are made from fused silica, therefore, the capillary
blood sampling kits are properly classified under subheading
7017.10.00, HTSUS, as laboratory glassware, of fused quartz or
other fused silica.
Heading 9027, HTSUS, provides for instruments or apparatus
for physical or chemical analysis. Note 1(d), Chapter 90,
HTSUS, excludes goods of heading 7017. Therefore, as the
capillaries are classified under heading 7017, HTSUS, they are
precluded from classification under heading 9027, HTSUS.
HOLDING:
The capillary blood sampling kits meet the requirements of a
set under GRI 3(b) with the essential character of the sets
imparted by the capillaries. The proper classification is under
subheading 7017.10.00, HTSUS, as "Laboratory, hygienic or
pharmaceutical glassware, whether or not graduated or
calibrated...Of fused quartz or other fused silica." Pre
classification rulings 863381 and 863377 are modified according
to the terms of this ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division