CLA-2 OT:RR:CTF:EMAIN H325669 PF
Robert Scott Dee
President
Dee Veterinary Products, LLC
1011 Park Centre Blvd.
Miami Gardens, Florida 33069
RE: Tariff classification of a Penrose Drains from China
Dear Mr. Dee:
This is in reply to your request for a prospective ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Penrose drains. Your request and supplemental information were forwarded by the National Commodity Specialist Division to this office for a response.
FACTS:
The Penrose drains at issue are soft tubes made of vulcanized latex rubber varying in size from ¼ to 1 inch in diameter with lengths varying from 12 to 18 inches. Each drain is sterilized and sold individually to animal hospitals for use in surgical procedures. Part of the drain is placed inside the pet’s body. One or both ends of the drain will come out of an incision. It is used to allow fluids to drain out of the pet during the healing process. An image of the Penrose drains is provided below:
ISSUE:
Whether the Penrose Drains are classified as tubes of vulcanized rubber of heading 4009, HTSUS, hygienic or pharmaceutical articles of vulcanized rubber of heading 4014, HTSUS, or as instruments or appliances used in veterinary sciences of heading 9018, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (AUSR). The GRIs and the AUSR are part of the HTSUS, and are considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS headings under consideration are as follows:
4009 Tubes, pipes and hoses, of vulcanized rubber other than hard rubber, with or without their fittings (for example, joints, elbows, flanges):
4014 Hygienic or pharmaceutical articles (including nursing nipples), of vulcanized rubber other than hard rubber, with or without fittings of 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 2(e) to Chapter 40 states, in pertinent part, the following:
This chapter does not cover:
Articles of Chapter 90, 92, 94 or 96….
This legal provision excludes 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 40, even if described therein. We must therefore begin our analysis with heading 9018.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
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.”
The EN for heading 9018, HTSUS, provides:
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….
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 courts have provided general 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.
In determining whether the Penrose drains are of the class or kind of instruments or appliances that are used in veterinary 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 Headquarters Ruling Letter (HQ) H305295, dated February 24, 2020, CBP classified rubber tourniquets in heading 4008, HTSUS, and plastic tourniquets in heading 3920, HTSUS, which provides for “other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials.” Although CBP considered classification in 9018, it was determined that the rubber and plastic tourniquets were not characterized by high finish and high precision. The subject merchandise in HQ H305295 was described as follows:
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.
CBP classified the merchandise in HQ H305295 in headings 4008 and 3920, HTSUS, asserting that the tourniquets were merely strips of rubber and plastic and that although they had sophisticated properties and uses, they were nonetheless substantially dissimilar to instruments, appliances, and other apparatus of Chapter 90. The reasoning in HQ H305295 applies to the subject Penrose drains, as they are tubes of rubber, and although they could be used by veterinary professionals, the Penrose drains lack the sophistication found in the physical characteristics of instruments and appliances of heading 9018. Moreover, the fact that the Penrose drains are sold individually to animal hospitals for use in surgical procedures does not outweigh that the subject Penrose drains are merely tubes of rubber that lack the sophistication found in instruments properly classified in heading 9018.
We now consider whether the Penrose drains are classified in headings 4009 or 4014, HTSUS. Heading 4009, HTSUS, provides for “[t]ubes, pipes and hoses, of vulcanized rubber other than hard rubber, with or without their fittings….” The ENs to heading 4009, HTSUS, provide, in pertinent part, that the heading covers:
[T]ubes, pipes and hoses consisting wholly of vulcanised rubber (other than hard rubber) and vulcanised rubber tubes, pipes, and hoses…. [T]ubes, pipes and hoses remain classified in this heading even if presented with fittings (for example, joints, elbows, flanges), provided that they retain the essential character of piping or tubing.
The Penrose drains at issue are soft tubes made of vulcanized latex rubber varying in size from ¼ to 1 inch in diameter with lengths varying from 12 to 18 inches. Each drain is sterilized and sold individually to animal hospitals for use in surgical procedures. Part of the drain is placed inside the pet’s body. One or both ends of the drain will come out of an incision. It is used to allow fluids to drain out of the pet during the healing process.
The Penrose drains are tubes of heading 4009, HTSUS. The Penrose drains conduct liquids by allowing fluids to drain out of a pet during the healing process after a surgical procedure. Their function is also consistent with the EN to heading 4009, HTSUS. Moreover, heading 4009, HTSUS, covers “tubes… of vulcanized rubber….” The Penrose drains, which are tubes, are also made of vulcanized rubber. Therefore, the Penrose drains are prima facie classifiable in heading 4009, HTSUS.
In your email correspondence, you suggested that the Penrose drains could be classified in heading 4014, HTSUS, which provides for “[h]ygienic or pharmaceutical articles (including teats), of vulcanised rubber other than hard rubber, with or without fittings of hard rubber.”
The notes to Chapter 40 do not define the term “hygienic or pharmaceutical.” However, the same term has been used in heading 7017, which covers hygienic or pharmaceutical glassware.
The EN to heading 7017 states:
The expression “hygienic or pharmaceutical glassware” refers to articles of general use not requiring the services of a practitioner. The heading therefore covers, inter alia, irrigators, nozzles (for syringes, enemas, etc.), urinals, bed pans, chamber pots, spittoons, cupping-glasses, breast-relievers (with or without rubber bulb), eye-baths, inhalers and tongue depressors. Spools and reels for winding surgical catgut are also included.
In addition, the EN to heading 4014, states that the heading covers:
[G]oods of vulcanised rubber other than hard rubber (with or without fittings of hard rubber or other materials), of the kind used for hygienic or prophylactic purposes. It therefore covers, inter alia, sheath contraceptives, cannulas, syringes and bulbs for syringes, vaporisers, droppers, etc. teats, nipple shields, ice-bags, hot water bottles, oxygen bags, finger-stalls, pneumatic cushions specialised for nursing (e.g., ring-type).
In this case, the Penrose drains do not meet the terms of “hygienic or pharmaceutical.” The Penrose drains are not of general use. They are placed inside the pet’s body by a veterinary surgeon to drain out the unwanted fluids in a surgical procedure. They fall out of heading 4014 because they require the services of a practitioner. Moreover, the Penrose drains are not similar to the examples provided in the ENs to heading 4014, HTSUS. Therefore, the Penrose drains are not classifiable in heading 4014, HTSUS.
The instant Penrose drains are described by heading 4009, HTSUS, which provides for “Tubes, pipes and hoses, of vulcanized rubber other than hard rubber, with or without their fittings (for example, joints, elbows, flanges).”
HOLDING:
By application of GRI 1, the subject Penrose drains are classified in heading 4009, HTSUS, and specifically in subheading 4009.11, which provides for “Tubes, pipes and hoses, of vulcanized rubber other than hard rubber, with or without their fittings (for example, joints, elbows, flanges): Not reinforced or otherwise combined with other materials: Without fittings.” The column one, general rate of duty for merchandise of this subheading is 2.5 ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under 4009.11.00, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 4009.11.0000, HTSUS, listed above.
The HTSUS is subject to periodic amendment, so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, including information on exclusions and their effective dates, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
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 World Wide Web at https://hts.usitc.gov/current. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported.
Sincerely,
Gregory Connor, Chief,
Electronics, Machinery, Automotive, and International Nomenclature Branch