CLA-2-39:OT:RR:NC:N4:421
Ms. Margaret Polito, Attorney At Law
222 Riverside Drive, Suite 14E
New York, NY 10025
RE: The tariff classification of an endoscope transport pad from China
Dear Ms. Polito:
In your letter dated June 20, 2012, on behalf of Medical Action Industries, Inc., you requested a tariff classification ruling.
A sample of an endoscope transport pad was included with your letter and is being returned as requested. The pad is used to transport a used endoscope from the location where the endoscopic procedure occurred to the endoscope reprocessor, a piece of equipment that cleans and sterilizes the endoscope so that it is ready for use in the next patient. The pad is composed of polyethylene plastic and has a paper liner. It incorporates a drawstring cord in a hem sewn around the perimeter of the pad. When flat, the pad can function as a cover for the endoscope cart. Pulling on the drawstring causes the pad to cinch around the instrument and form a secure container so that the endoscope can be carried. The contaminated pad is disposed of after use. The sample measures 34 inches at its widest width and 40 inches in length and includes a paper liner measuring 16 inches by 36 inches that is glued to the center portion of the pad. Transport pads are available in other sizes to fit different types of endoscopes.
You propose classification in subheading 9018.19.4000, Harmonized Tariff Schedule of the United States (HTSUS),which provides for, inter alia, accessories of apparatus for functional exploratory examination. We do not agree that these transport pads are accessories of endoscopes for tariff purposes. You cite some of the language from Rollerblade, Inc. v. United States, 116 F. Supp. 2d, 1247, 1252 (CIT 2000). However, the appellate decision, Court of Appeals for the Federal Circuit, 01-1049, March 5, 2002, agreed, in fact, with Customs and affirmed the Court of International Trade’s decision that the protective gear in question was neither parts nor accessories of skates as claimed by the importer. CAFC 01-1049 noted as significant that the protective gear “are not necessary to make the skates themselves work…, nor are they necessary to make the skates work efficiently or safely.” CAFC 01-1049 further noted, “In other words, the skates work in the same manner whether or not the skater wears the protective gear or not.” The transport pads here are designed not even to protect the doctor nor the patient in any way while the endoscope is being used in the exploratory examination. They are used only to protect the hospital aides and others from infectious agents, noxious fumes, etc. emanating from the endoscope while it is being brought to a sterilizer after its use. Consistent with CAFC 01-1049, “(T)he language does not embrace every accessory associated with the broader activity” of endoscopy. Although you cite other CBP rulings which classified imports as parts or accessories of apparatus of Chapter 90, we consider the closest parallel in previous rulings to be, in fact, the baskets and trays made exclusively for the transportation to and positioning in sterilizers of specific medical instruments after their use. Headquarters Ruling Letter H036115 JPJ, dated November 19, 2008, ruled explicitly that those baskets and trays were neither parts nor accessories of the medical instruments that they were specifically constructed for.
You suggest in the alternative that the pads are classifiable in subheading 4819.30.0040, HTSUS, which provides for sacks and bags of paper, having a base of a width of 40 cm or more: other.
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs), 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. Since no one heading in the tariff schedules covers the components of the transport pad in combination, GRI 1 cannot be used as a basis for classification. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character, which may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the article. The function of the product is to provide a safe, secure method of transporting the endoscope to the reprocessor. The leak proof quality and the bag-like shape of the plastic sheeting provide a secure means of carrying the device to the place where it can be sterilized while protecting the health care providers from germs while the device is being transported. The impermeable nature of the plastic sheeting also keeps the work surface protected during the procedure. While the paper liner provides a means of absorbing some degree of harmful waste, that function is secondary, since the transport pad would fully perform its function even without any ability to absorb.
The applicable subheading for the endoscope transport pads will be 3926.90.9980, HTSUS, which provides for other articles of plastics…other. The rate of duty will be 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 World Wide Web at http://www.usitc.gov/tata/hts/.
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. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at (646) 733-3023.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division