CLA-2 R:C:M 956881 LTO
Ms. Patricia M. Hanson
Katten, Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
RE: VMP400 Needle*less Cannula; HQs 085088, 086015, 089415
952884; NY 864352; chapter 90, note 2(a); "cannula";
"catheter"; Nissho-Iwai American Corp. v. U.S.; Nippon
Kogasku (USA), Inc. v. U.S.; C.J. Tower & Sons v. U.S.;
ejusdem generis
Dear Ms. Hanson:
This is in response to your letter of August 11, 1994, on
behalf of Baxter Healthcare Corporation, requesting the
classification of the VMP400 Needle*less Cannula under the
Harmonized Tariff Schedule of the United States (HTSUS). In
preparing this ruling, we have also considered your supplemental
submission of December 7, 1994, as well as, the samples submitted
with your original request.
FACTS:
The article in question is the "Needle*less Cannula," which
is used with the Venous/Arterial Blood Management Protection
(VAMP) closed blood sampling system. The Needle*less Cannula,
which is made of polycarbonate plastic, consists of a small
hollow tube enclosed in a slightly larger shield to protect it
from contamination. The blunt instrument can be attached to both
syringes with luer lock tips and syringes with luer slip tips.
The Needle*less Cannula is used to penetrate a sampling site
to draw a blood sample directly from the site up into an
attachable syringe. It is used in lieu of a needle to penetrate
the sampling site, which is equipped with a specially designed
rubber diaphragm. The instrument is designed to prevent needle - 2 -
sticks and blood splatter while drawing blood samples.
ISSUE:
Whether the Needle*less Cannula is classifiable as a syringe
accessory under subheading 9018.31.00, HTSUS, or as a cannula
under subheading 9018.39.00, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) 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. See
T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The merchandise at issue is clearly classifiable under
heading 9018, HTSUS, which provides for instruments and
appliances used in medical, surgical, dental or veterinary
sciences, and parts and accessories thereof. However, the
following subheadings must be considered:
Syringes, needles, catheters, cannulae and the like;
parts and accessories thereof:
9018.31.00 Syringes, with or without needles; parts
and accessories thereof
9018.32.00 Tubular metal needles and needles for
sutures and parts and accessories thereof
9018.39.00 Other
Note 2(a) to chapter 90, HTSUS, states, with regard to the
classification of parts and accessories in chapter 90, as
follows:
Parts and accessories which are goods included in any
of the headings of this chapter or of chapter 84, 85 or
91 (other than heading 8485, 8548 or 9033) are in all
cases to be classified in their respective headings.
Thus, if the Needle*less Cannula is classifiable as a
"medical instrument or appliance" under heading 9018, HTSUS, - 3 -
(specifically, as a cannula, or something "like" a cannula, under
subheading 9018.39.00, HTSUS), then it cannot be classified as a
syringe accessory under subheading 9018.31.00, HTSUS.
The term "cannula" is not defined in the HTSUS or the
Explanatory Notes. When terms are not so defined, they are
construed in accordance with their common and commercial meaning.
Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d
380 (1982). Common and commercial meaning may be determined by
consulting dictionaries, lexicons, scientific authorities and
other reliable sources. C.J. Tower & Sons v. United States, 69
CCPA 128, 673 F.2d 1268 (1982).
Dorland's Illustrated Medical Dictionary defines "cannula"
as a "tube for insertion into a duct or cavity; during insertion
its lumen (cavity or channel within a tube) is usually occupied
by a trocar (a sharp pointed instrument used to puncture the wall
of a body cavity)." Dorland's, pg. 262, 956, 1760 (1988). See
HQ 086015, dated January 10, 1990; HQ 085088, dated March 12,
1990; HQ 952884, dated February 23, 1993.
The American Medical Association Encyclopedia of Medicine,
pg. 230 (1989), defines "cannula" as follows:
A plastic or metal tube with a smooth, unsharpened tip
for inserting into a blood vessel, lymphatic vessel, or
body cavity to introduce or withdraw fluids. The
physician first punctures the site with a long, thin
needle, slides the cannula over it, and then withdraws
the needle. Alternatively, he or she may insert a
trocar (sharp-pointed rod) inside the cannula and remove
it once the vessel has been entered. Cannulas are
frequently used for blood transfusions and intravenous
infusions and for draining pleural effusions. In
certain circumstances, such as when blood is required
for testing over a period of time, the cannula may be
left in place for several days [emphasis in original].
Finally, Webster's Ninth New Collegiate Dictionary defines
"cannula" as "a small tube for insertion into a body cavity or
into a duct or vessel." Webster's, pg. 202 (1990).
While we agree that a cannula can be used without the
presence of a trocar, the above definitions contemplate the
insertion of the instrument into a duct or cavity of the body.
A "cannula" is similar to a "catheter," which is a "tubular
medical device for insertion into canals, vessels, passageways,
or body cavities usu. to permit injection or withdrawal of fluids
or to keep a passage open." Webster's, pg. 216.
The article in question, although referred to as the
"Needle*less Cannula," is not inserted into a duct or cavity of - 4 -
the body. Rather, the article is used in lieu of a needle to
penetrate sampling or injection sites equipped with a specially
designed rubber diaphragm. See NY 864352, dated July 16, 1991
(wherein the injection sites and a vial adapter which included
the rubber diaphragm were held to be classifiable under
subheading 9018.90.80, HTSUS, which provides for other parts and
accessories for medical instruments and appliances). Thus, the
instrument in question is not a "cannula" for tariff purposes,
and cannot be classified as such under subheading 9018.39.00,
HTSUS.
However, within heading 9018, HTSUS, there are several
subheadings at the five-digit level, including subheading 9018.3,
HTSUS, which provides for "[s]yringes, needles, catheters,
cannulae and the like [emphasis added]." It is our opinion that
the Needle*less Cannula is in the "same class or kind " as the
articles described under subheading 9018.3, HTSUS.
The U.S. Court of International Trade (CIT) has stated that
the canon of construction, ejusdem generis, which means
literally, of the same class or kind, teaches that "where
particular words of description are followed by general terms,
the latter will be regarded as referring to things of a like
class with those particularly described." Nissho-Iwai American
Corp. v. United States, 641 F.Supp. 808, 10 CIT 154, 156 (1986).
See HQ 089415, dated November 7, 1991. The CIT further stated
that "[a]s applicable to customs classification cases, ejusdem
generis requires that the imported merchandise possess the
essential characteristics or purposes that unite the articles
enumerated eo nomine in order to be classified under the general
terms." Id. at 157.
The Needle*less Cannula is used to penetrate a sampling site
to draw a blood sample directly from the site up into a syringe.
The Needle*less Cannula is a tube or channel used for the
transport of blood. Because it is not inserted into a duct or
cavity of the body, the Needle*less Cannula is not a "cannula"
for tariff purposes. The Needle*less Cannula is, however, an
instrument that functions in a manner similar to a cannula.
Moreover, while the Needle*less Cannula, unlike a needle or
catheter, does not enter the body, subheading 9018.3, HTSUS, also
includes "syringes," which, without the presence of a needle, do
not enter the body. Accordingly, the Needle*less Cannula meets
the terms of subheading 9018.3, HTSUS, and it is classifiable, as
a "medical instrument or appliance" under subheading 9018.39.00,
HTSUS. The Needle*less Cannula cannot, therefore, be classified
as a syringe accessory under subheading 9018.31.00, HTSUS. See
Chapter 90, note 2(a).
- 5 -
HOLDING:
The Needle*less Cannula is classifiable under subheading
9018.39.00, HTSUS, which provides for "[i]nstruments and
appliances used in medical, surgical, dental or veterinary
sciences; parts and accessories thereof . . . [s]yringes,
needles, catheters, cannulae and the like . . . [o]ther." The
corresponding rate of duty for articles of this subheading is
3.4% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division