OT:RR:CTF:EMAIN H304940 SK
Mr. Craig Lewis, Esq.
Hogan & Hartson, LLP
555 13th Street, N.W.
Washington, DC 20004-1109
RE: Modification of HQ 967233; stethoscope cover without antimicrobial agent; Stethocap™; other made up articles.
Dear Mr. Lewis:
In HQ 967233, issued to you on February 18, 2005, on behalf of your client The Buzz Group LLC (Buzz Group), U.S. Customs and Border Protection (CBP) affirmed the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two styles of stethoscope covers the subject of New York Ruling Letters (NY) K83122, dated February 20, 2004, and K83786, dated March 24, 2004. Specifically, HQ 967233 affirmed the classification of a StethocapTM in subheading 9018.90.80, HTSUS, which provides for, in pertinent part, accessories of instruments and appliances used in the medical field, and the classification of a StethocapTM with antimicrobial agent in subheading 3808.90.70, HTSUS, which provides for, in pertinent part, insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles.
Upon review, CBP has determined HQ 967233 to be partially in error as regards the classification of the StethocapTM without antimicrobial agent. CBP is modifying HQ 967233 according to the analysis set forth below.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice proposing to modify HQ 967233 was published on October 30, 2019, in Volume 53, Number 39 of the Customs Bulletin. No comments were received in opposition to the proposed action.
FACTS:
Two styles of stethoscope covers were at issue in HQ 967233. This
modification concerns only the StethocapTM style presented without an antimicrobial agent.
In HQ 967233, the StethocapTM (without antimicrobial agent) is described
as consisting of a blister pack containing two, circular, plastic caps, each measuring 2" in diameter. The cap is designed to be snapped onto the diaphragm of a standard manual stethoscope, prior to auscultating the patient, to prevent the transmission of microorganisms - and the risk of infection - from the diaphragm to the patient.
LAW AND ANALYSIS:
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 may then be applied.
The HTSUS subheadings under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
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:
Notes 1 and 2 to Chapter 39, HTSUS, provide, in pertinent part:
Throughout the tariff schedule the expression "plastics" means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
* * *
This chapter does not cover:
* * *
(u) Articles of Chapter 90 (for example, optical elements, spectacle frames, drawing instruments);
* * *
Note 2 to Chapter 90, HTSUS, provides:
Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
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;
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 (including a machine, instrument or apparatus of heading 9010, 9013, or 9031) are to be classified with the machines, instruments or apparatus of that kind;
All other parts and accessories are to be classified in heading 9033.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to heading 9018, HTSUS, states, in pertinent part:
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. Instruments and appliances for anatomical or autoptic work, dissection, etc., are also included, as are, under certain conditions, instruments and appliances for dental laboratories (see Part (II) below). The instruments of the heading may be made of any material (including precious metals).
As Chapter 39 Note 2(u) excludes articles of Chapter 90, our initial analysis is whether the subject merchandise is classifiable as an accessory of instruments and appliances used in medical, surgical, dental or veterinary sciences of heading 9018, HTSUS.
The term “accessory” is not defined in the HTSUS or in the ENs. This office has previously stated that the term “accessory” is generally understood to mean an article that must directly contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation). See HQ 301594, dated December 18, 2018; HQ 958710, dated April 8, 1996; and, HQ 950166, dated November 8, 1991. We also employ the common and commercial meanings of the term “accessory,” as per Rollerblade v. United States, wherein the Court of International Trade (C.I.T.) derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (Ct. Int'l Trade 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002) (holding that inline roller skating protective gear is not an accessory because the protective gear does not directly act on the roller skates).
In applying the court’s standard to the instant facts, we must examine whether the subject covers directly contribute to the effectiveness of a stethoscope’s function. A stethoscope is a medical instrument for “detecting sounds produced in the body that are conveyed to the ears of the listener through rubber tubing connected with a piece placed upon the area to be examined.” See https://www.merriam-webster.com/dictionary/stethoscope (last visited August 2019). In HQ 967233, the subject stethoscope caps are described as providing a barrier to prevent contamination of a stethoscope. As such, they do not directly add to or enhance a stethoscope’s function of detecting sounds in the body. Therefore, the subject stethoscope covers do not rise to the level of an accessory of a medical instrument or appliance of heading 9018, HTSUS.
As the subject articles are not accessories of heading 9018, HTSUS, Note 2(b) to Chapter 90 is inapplicable. The subject plastic stethoscope covers are also not included under any other more specific provision in Chapter 39, and therefore they fall to heading 3926, HTSUS, specifically subheading 3926.90, HTSUS, as other articles of plastic. We further note that CBP has historically classified various styles of protective barriers used in the medical arena to cover medical apparatus according to their constituent material. In NY 883919, dated April 13, 1993, CBP classified plastic disposable banded bags, used to cover non-sterile items in the operating room, and surgical drapes, under subheading 3926.90, HTSUS, as other articles of plastic. In NY C81283, dated November 28, 1997, CBP classified a protective drape designed to protect equipment in an operating room under subheading 3926.90, HTSUS. See also NY 8708868, dated February 13, 1992, in which CBP classified protective barriers designed to shield C-arm and mobile X-ray drapes, microscope, laser and video camera drapes, and x-ray cassette drapes” under 3926.90, HTSUS. In NY N041298, dated November 3, 2008, CBP classified a general purpose probe cover used to shield medical apparatus in subheading 3926.90, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the StethocapTM without antimicrobial is classifiable under subheading 3926.90.99, HTSUS, which provides for “[O]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The column one, general duty rate of duty is 5.3 percent ad valorem.
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.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ 967233, dated February 18, 2005 is hereby MODIFIED in accordance with the above analysis.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division