CLA-2 CO:R:C:M 954914 RFA
District Director of Customs
1 East Bay Street
Savannah, GA 31401
RE: Protest No. 1704-93-100153; Orbiter; Ceiling Services Units;
Medical Accessories; NY 874970; HQs 087704 and 954174;
Chapter 90, Note 2
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 1704-93-100153, which concerns the
classification of Orbiters under the Harmonized Tariff Schedule
of the United States (HTSUS). The entries of the subject
merchandise were liquidated on January 15, 1993. The protest was
timely filed on March 3, 1993.
FACTS:
The subject merchandise, labeled the "Orbiter", is a support
system which can be used in surgical suites, surgical theaters
and wherever there is a need for ready access to specialized
anesthesia and/or surgical monitoring equipment, gases/medical
air, electrical power and communication service. It consists of
a ceiling plate, a suspension arm or arms, a suspension tube, a
support head with electrical outlets and a platform to hold
various instruments. Models of the "Orbiter" vary from a fixed
height single column to a heavy duty double arm variable height
suspension system. It allows for gas/medical services to be
dispensed from the back of the support head. The following gas
services are available and arranged to meet customer
specifications: oxygen, vacuum, nitrogen, nitrous oxide, medical
air, evacuation and carbon dioxide. The Orbiter is also equipped
with duplex electrical receptacles and grounding plugs,
data/communication service conduits and a junction box.
The Orbiter units are designed to support physiological
monitoring, arthroscopy, video endoscopy and related
instrumentation (by others) used during anesthesia and/or
surgical procedures. Because the Orbiter units are supported
from the ceiling, they provide an uncluttered floor area for more
economic use of floor space and greater flexibility in operating
room utilization.
The merchandise was entered under subheading 9018.19.80,
HTSUS, as an accessory to patient monitoring systems. The entries
were liquidated under subheading 9018.90.80, HTSUS, as an
accessory to other medical, surgical, dental, or veterinary
instruments and appliances.
Classification of the merchandise under subheading
9033.00.00, HTSUS, as an accessory for machines, appliances,
instruments or apparatus of chapter 90 is also under
consideration.
The subheadings under consideration are as follows:
9018: Instruments and appliances used in medical,
surgical, dental or veterinary sciences. . . ;
parts and accessories thereof:
9018.19.80: Electro-diagnostic apparatus (including
apparatus for functional exploratory
examination or for checking physiological
parameters); parts and accessories thereof:
[o]ther: [o]ther. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 4.2 percent ad valorem.
9018.90.80 Other instruments and appliances and parts
and accessories thereof:[o]ther:[o]ther. . .
Goods classifiable under this provision have a general,
column one rate of duty of 7.9 percent ad valorem.
9033.00.00 Parts and accessories (not specified or
included elsewhere in this chapter) for
machines, appliances, instruments or
apparatus of chapter 90 . . . .
Goods classifiable under this provision have a general,
column one rate of duty of 4.9 percent ad valorem.
ISSUE:
Whether the Orbiter units are classifiable as an accessory
to patient monitoring systems, or as an accessory to other
medical, surgical, dental, or veterinary instruments and
appliances, or as an accessory not specified elsewhere in chapter
90 under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
It has been suggested that the Orbiters are "accessories"
which are classifiable in chapter 90. In HQ 087704, dated
September 27, 1990, this office considered the classification of
"accessories" under the HTSUS, and stated as follows:
The term "accessory" is not defined in either the
tariff schedule or the Explanatory Notes. 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 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).
The Orbiter units are not necessary to enable the
instruments with which they are used to fulfill their intended
function, as the instruments would operate and handle effectively
when plugged in to ordinary wall outlets. However, by placing
all instrumentation on a single base, the Orbiter units
facilitate the use of a room without the inconvenience of
cluttering the floor with connecting cables and hoses. They also
create more space around the center of activity for attendants
and observers, thereby making more efficient utilization of work
space. Thus, while the Orbiter units do not improve the
operation of any single instrument, they contribute to the
effectiveness of all the instruments with which they are used.
Accordingly, it is our opinion that the units in question are
"accessories" for articles of chapter 90.
Note 2 to chapter 90 governs the classification of parts and
accessories for machines, apparatus, instruments or articles of
chapter 90. It states that they 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 . . . 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 . . . are to be
classified with the machines, instruments or
apparatus of that kind;
(c) All other parts and accessories are to be
classified in heading 9033.
The Orbiter units are not "goods included" in any chapter
84, 85, 90 or 91 heading, nor are they principally used with a
number of machines, instruments or apparatus of a single chapter
90 heading. For example, the units can be used in an operating
room with instruments of heading 9018, HTSUS, as well as, in an
intensive care unit with instruments of heading 9019, HTSUS.
Thus, it is necessary to resort to note 2(c).
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Co-operation
Council's official interpretation of the Harmonized System.
While not legally binding, the ENs provide a commentary on the
scope of each heading of the Harmonized System, and are generally
indicative of the proper interpretation of these headings.
With regard to note 2(c), the general EN to chapter 90, pg.
1457, states that "[p]arts or accessories suitable for use with
several categories of machines, appliances, instruments or
apparatus falling in different headings of this Chapter are
classified in heading 90.33 . . . [emphasis in original]." In HQ
954174, dated November 23, 1993, Customs held that similar
merchandise, labeled as Ceiling Services Units, were classifiable
under subheading 9033.00.00, HTSUS. Like the merchandise in HQ
954174, we find that the Orbiter units are classifiable under
subheading 9033.00.00, HTSUS.
HOLDING:
The Orbiters are classifiable under subheading 9033.00.00,
HTSUS, which provides for parts and accessories not specified or
included elsewhere in this chapter for machines, appliances,
instruments or apparatus of chapter 90. The corresponding rate
of duty for articles of this subheading is 4.9% ad valorem.
You should deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision, together with the
Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division