OT:RR:CTF:CPMM H305295 MMM
Port Director
U.S. Customs and Border Protection
715 Bob Bullock Loop
Word Trade Bridge
Laredo, TX 78045-7846
Attn: Christina Vidal/Team 091
Re: Application for Further Review of Protest Number 1703-19-100629; tariff classification of rubber and plastic tourniquets
Dear Port Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 1703-19-100629, dated September 2, 2015, on behalf of Anatomy Supply Partners LLC (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of one entry of rubber and plastic tourniquets in heading 9018, Harmonized Tariff Schedule of the United States (HTSUS), as instruments and appliances used in medical and surgical sciences.
The subject merchandise was entered on February 2, 2018, in heading 9018, HTSUS, which provides for, in relevant part, “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.” The entry was liquidated on December 4, 2018. Tourniquet style VTQK302 was liquidated in heading 4008, HTSUS, as plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber, and tourniquet style TQT306 was liquidated in heading 3920, HTSUS, as other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials. Protestant claims classification in heading 9018, HTSUS.
FACTS:
Style VTQK302 is a smooth, latex-free blue tourniquet made of 60% styrene-butadiene rubber (SBR) and 40% acrylonitrile butadiene rubber (NBR), measuring 1 x 18 inches. These tourniquets are shipped flat, banded in bundles, and packed 250 per bag.
Style TQT306 is a smooth, latex-free orange tourniquet made of styrene ethylene butylene (SEBS, a thermoplastic elastomer), measuring 1 x 18 inches. The tourniquets are rolled and perforated for ease of separation and packed 25 per box.
ISSUE:
Whether the plastic and rubber tourniquets are classified in heading 9018, HTSUS, as instruments used in medical and surgical sciences or in heading 3920, HTSUS, and heading 4008, HTSUS, according to their material as strips of plastic or of vulcanized rubber.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)). Further review of Protest Number 1703-19-100629 is properly accorded pursuant to 19 C.F.R.
§ 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts.
The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2 through 6 may then be applied in order.
In this case, the 2018 HTSUS headings under consideration are as follows:
3920 Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials
4008 Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber
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
Note 1 to Chapter 39 states as follows: “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.”
Note 2(u) of Chapter 39 states as follows: “This chapter does not cover: Articles of chapter 90.” Note 10 to Chapter 39 states as follows: “In headings 3920 and 3921, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).”
Note 7 to Chapter 40 states as follows: “Thread wholly of vulcanized rubber, of which any cross-sectional dimension exceeds 5 mm, is to be classified as strip, rods or profile shapes, of heading 4008.” Note 9 to Chapter 40 states as follows: “In heading . . . 4008, the expressions "plates", "sheets" and "strip" apply only to plates, sheets and strip, and to blocks of regular geometric shape, uncut or simply cut to rectangular (including square) shape, whether or not having the character of articles and whether or not printed or otherwise surface-worked, but not otherwise cut to shape or further worked.”
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 4008 state, in relevant part, as follows: “Once a substance has been determined to be synthetic rubber, products made therefrom are considered as vulcanised rubber products for the purpose of headings 40.07 to 40.17, whether they have been vulcanised with sulphur or with some other vulcanising agent.”
The ENs to Chapter 90 state, in relevant part, as follows: “This Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterized by their high finish and high precision. Most of them are used mainly for scientific purposes (laboratory research work, analysis, astronomy, etc.), for specialized technical or industrial purposes (measuring or checking, observation, etc.) or for medical purposes.”
* * * *
Classification within Chapter 39 is subject to Note 2(u) of Chapter 39. Additionally, classification within Chapter 40 is subject to Note 2(e) of Chapter 40. Both of these legal provisions exclude goods classifiable in Chapter 90. Hence, if the subject merchandise is described in Chapter 90, it is precluded from classification in any of the provisions of Chapter 39 and 40, even if described therein. We must therefore begin our analysis with heading 9018.
Heading 9018 is a principal use provision. For articles governed by principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use "is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.
The CIT has provided factors, the Carborundum factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), and use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
Therefore, the first determinative issue is whether the plastic and rubber tourniquets are of the class or kind of good that is used in medical and surgical sciences. We will first consider the subject merchandise’s physical characteristics.
The “instruments” in Chapter 90 are physically characterized by their “high finish and high precision.” In HQ H222137, CBP classified SeriScaffold, surgical mesh in heading 3005, and although CBP considered classification in 9018, it was determined that surgical mesh was not characterized by high finish and high precision. The subject merchandise in H222137 was described as follows:
The instant article is a biocompatible textile mesh that is implanted in the body to repair breast tissue deficiencies or to support breast prostheses. The SeriScaffold’s silk fabric possesses bio-mechanical properties of connective tissue and is designed to withstand unraveling after being cut into shape… [T]he SeriScaffold surgical mesh primarily functions to repair the void between the pectoral muscle and chest wall.
CBP classified the merchandise in H222137 in heading 3005, asserting that the surgical mesh was merely a piece of raw silk fabric and that although it has sophisticated properties and uses, it was nonetheless substantially dissimilar to instruments, appliances, and other apparatuses of Chapter 90. The subject tourniquets are similar to the surgical mesh in H222137, as the tourniquets are merely strips of rubber and plastic, and although they could be used by medical professionals, the tourniquets lack the sophistication found in the physical characteristics of instruments in Chapter 90.
The Protestant, applying the Carborundum factors, gives the following reasons for why the subject merchandise satisfies the principal use provision: 1) applying a tourniquet requires medical training; 2) the Protestant merchandise is only sold through the wholesale medical supply chains and not to individuals; and 3) tourniquets are regulated by the FDA as medical devices.
The reasons the Protestant gives do not outweigh that the subject tourniquets in this case are merely pieces of plastic and rubber and lack the sophistication found in instruments properly classified in heading 9018. Additionally, although the Protestant’s merchandise is only sold through wholesale supply chains, plastic and rubber tourniquets may be purchased by individuals on e-commerce sites or packaged for inclusion in first aid kits.
Furthermore, Federal Food and Drug Administration classification as a Class 1 Medical Device has no bearing on this decision. Although other agency decisions may be informative, these decisions are not binding on CBP and we do not need to consider other agency‘s statutes, regulations, and administrative interpretations in defining tariff terms.
Moreover, the tourniquet is not a part or accessory to the medical instruments and devices provided for in Heading 9018 which are used directly after its application to a limb. The definition of “parts” was discussed in Rollerblade, Inc. v. United States, wherein the United States Court of Appeals for the Federal Circuit (“CAFC”) defined parts as “an essential element or constituent; integral portion which can be separated, replaced, etc.” This line of reasoning has been applied in previous CBP rulings. Insofar as the term “accessory” is concerned, the Court of International Trade (“CIT”) has previously referred to the common meaning of the term because the term is not defined by the HTSUS or its legislative history. We also employ the common and commercial meanings of the term “accessory”, as the CIT did in Rollerblade, Inc., wherein the court derived from various dictionaries “that an accessory must relate directly to the thing accessorized.” In Rollerblade, Inc., the CAFC noted that “an ‘accessory’ must bear a direct relationship to the primary article that it accessorizes.” In support of its finding that the protective gear was not an accessory to roller skates, the CAFC also noted that the “protective gear does not directly affect the skates’ operation.” Tourniquets are not a component of the syringe or needle classified there, nor do they pierce the skin or draw and contain the blood. While the tourniquet is applied to the limb just before the syringe and needle are used to draw blood from a vein, or the catheter is inserted into a vein for intravenous access, this temporal connection to the use of medical instruments of heading 9018 on the same limb does not make them a part or accessory to the syringe, needle or catheter. None of the rulings cited by protestant are relevant in that they do not classify similar merchandise or merchandise with only a temporal connection to medical instruments and devices. Therefore, the subject tourniquets are not correctly classified in heading 9018.
We now consider heading 3920 and 4008. Style TQT306 is made of styrene ethylene butylene styrene, which is a block copolymer. Copolymers are defined and classified as determined by Note 4 of Chapter 39. Additionally, Styrene ethylene butylene styrene is a thermoplastic elastomer, meaning it acts like a rubber, however, it does not meet the requirements found in Note 4 of Chapter 40 to be considered a synthetic rubber and is therefore a plastic in Chapter 39. Style TQT306 is classified in heading 3920.
Tourniquet style VTQK302 is classified under heading 4008. Style VTQK302 is made of styrene-butadiene rubber and acrylonitrile butadiene rubber, these are synthetic rubbers found enumerated in heading 4002. Style VTQK302 is considered a vulcanized rubber product for the purpose of heading 4008, because the rubber tourniquet is made wholly of vulcanized rubber, its cross sectional dimensions exceed 5 mm, and it is simply cut to a rectangular shape.
HOLDING:
By application of GRI 1, the rubber tourniquets are classified under headings 4008, HTSUS, specifically subheading 4008.21.0000, HTSUS, which provides, in pertinent part, for: “Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber: Of noncellular rubber: Plates, sheets and strips.” By application of GRI 1, the plastic tourniquets are classified under heading 3920, HTSUS, specifically subheading 3920.99.2000, HTSUS, which provides, in pertinent part, for: “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined by other materials: Of other plastics: Film, strip and sheets, all the foregoing which are flexible: Other.” The 2018 column one, general rate of duty for subheading 4008.21.0000 is free. The 2018 column one, general rate of duty for subheading 3920.99.2000 is 4.2% ad valorem.
You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division