H320982

HQ H320982 January 9, 2024 OT:RR:CTF:CPMMA H320982 ACA CATEGORY: Classification TARIFF NO.: 3926.90.9950 Mr. Paul S. Anderson The Anderson Law Firm, LLC 111 Barclay Boulevard, Suite 206 Lincolnshire, IL 60069 Re: Affirmation of NY N320485; Classification of SurgyPad Patient Positioner Dear Mr. Anderson: This is in response to your letter, dated August 31, 2021, in which you request reconsideration of New York Ruling Letter (“NY”) N320485, issued to you on July 28, 2021, by U.S. Customs and Border Protection (“CBP”), concerning classification of the “SurgyPad Patient Positioner, Version 3” (“SurgyPad”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). On December 19, 2023, CBP and your office had a meeting to discuss any further information that might be relevant to the classification of the subject merchandise. Upon review of NY N320485, we have determined that it is correct, and hereby affirm that ruling for the reasons set forth below. The SurgyPad at issue is described as follows in NY N320485: Per your submission, the bulk of the product by volume consists of a green/blue colored polyurethane foam material. The article fits a patient’s torso up through the head area and has foam protective arms permanently sewn to the product. There are six hook and loop straps that attach the product to the operating table. The straps and materials are sewn and glued with a water-based glue. There is also a black anti-skid portion on the back of the article which is comprised of rubber and felt and is used for extra adhesion in securing the patient to the table. This version of the patient positioner has wider body straps, extended arm length, wider and more substantial arm straps, upgraded D-rings on the arms for greater security, and upgraded foam quality on the arms to accommodate larger patients. Also contained in the packaging are extra hook and loop straps along with a draw/lift sheet made of 80-gram spun lace non-woven fabric. This lift sheet is sold with the patient positioner and is included in the same packaging. The sheet is placed on top of the patient positioner but underneath the patient and is used to move the patient up or down if different positioning is needed. The subject article is a one-time use, disposable article which is designed solely for use in securing a patient to an operating room table for surgeries that require Trendelenburg-lateral tilt positioning. Descriptions of the SurgyPad included in your reconsideration request are consistent with those set forth above. In NY N320485, CBP classified the subject SurgyPad in heading 3926, HTSUS, which provides, inter alia, for “other articles of plastics,” specifically under subheading 3926.90.9950, HTSUSA (“Annotated”), which provides for “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther: [f]ace masks and shields, medical positioning or transport pads, medical waste containers or disinfectant wipes dispensers.” In your reconsideration request, you assert that this classification is incorrect, and that the SurgyPad is correctly classified in subheading 9402.90.0020, HTSUSA, which provides for “Medical, surgical, dental or veterinary furniture (for example, operating tables, examination tables, hospital beds with mechanical fittings, dentists’ chairs); barbers’ chairs and similar chairs, having rotating as well as both reclining and elevating movements; parts of the foregoing articles: Other: Other,” and in the alternative, under subheading 9018.90.8000, HTSUSA, which provides for “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: Other instruments and appliances and parts and accessories thereof: Other: Other.” As a preliminary matter, there is no dispute that heading 9402, HTSUS, provides for the operating table to which the subject merchandise attaches. However, the issue here is whether the SurgyPad constitutes a “part” of the operating table, which is provided for directly in heading 9402, HTSUS. The term “part” is not defined in the HTSUS, but in the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a part for tariff classification purposes. See Bauerhin Techs. Ltd. P’shp. v. United States, 110 F.3d 774 (Fed. Cir. 1997) (hereinafter, “Bauerhin”). Under the test first articulated in United States v. Willoughby Camera Stores, 21 C.C.P.A. 322 (1933), an imported item qualifies as a part only if it can be described as an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779. Pursuant to the second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests). An item is not a part if it is “a separate and distinct commercial entity.” Bauerhin, 110 F.3d at 779. Here, the SurgyPad is a patient positioning system designed to secure a patient onto an operating table by providing additional comfort and security during a procedure when the patient is in the Trendelenburg or lateral tilt position. It is designed and marketed to be a single-use, disposable article that can simply be attached to the rails of a surgical operating table via six hook and loop straps. The SurgyPad is not necessary to the completion of an operating table, as the operating table can function without it. Further, an operating table can operate in the Trendelenburg or lateral tilt position without the use of the SurgyPad. Thus, the operating table itself is a completed article and the SurgyPad acts merely as an additional support system; it is not a “part” of the operating table. Additionally, EN 94.02 does not support the subject merchandise’s classification in heading 9402, HTSUS. EN 94.02(A) provides that medical, surgical, dental, or veterinary furniture of heading 9402, HTSUS, includes “beds combined with splints or other dislocation or fracture appliances and the like….[h]owever, when such equipment is of a type designed to be simply attached to, but not fixed to the bed, it falls in heading 90.21…” Moreover, EN 94.02(C) states: Parts of the foregoing articles are classified in this heading provided they are recognizable as such parts. These parts include: Articles of a kind specially designed for fixing to operating tables to immobilise patients (such as shoulder, leg or thigh grips, leg supports, immobilising head-rests, arm or thorax supports and the like). The ENs establish that equipment simply attached to and not fixed to the bed do not fall within heading 9402, HTSUS, and further provide examples of articles that do fall in that heading. Articles must be specifically designed to be fixed to an operating table. According to the Merriam-Webster Online Dictionary, “attached” suggests a connection “by a bond, link, or ties in order to keep things together,” while “fix” implies a “driving in, implanting, or embedding.” See Merriam-Webster, https://www.merriam-webster.com/dictionary/attach (last visited October 10, 2023). Here, the SurgyPad is designed to simply attach to an operating table with six hook and loop straps. It is not designed to be embedded to an operating table. The examples in EN 94.02(C) typically include clamps, rods, and locks that allow the parts to be embedded or implanted into an operating table. Such examples are typically designed to attach to specific operating tables as a necessary

that a purported part must satisfy both the Willoughby and Pompeo tests). An item is not a part if it is “a separate and distinct commercial entity.” Bauerhin, 110 F.3d at 779. Here, the SurgyPad is a patient positioning system designed to secure a patient onto an operating table by providing additional comfort and security during a procedure when the patient is in the Trendelenburg or lateral tilt position. It is designed and marketed to be a single-use, disposable article that can simply be attached to the rails of a surgical operating table via six hook and loop straps. The SurgyPad is not necessary to the completion of an operating table, as the operating table can function without it. Further, an operating table can operate in the Trendelenburg or lateral tilt position without the use of the SurgyPad. Thus, the operating table itself is a completed article and the SurgyPad acts merely as an additional support system; it is not a “part” of the operating table. Additionally, EN 94.02 does not support the subject merchandise’s classification in heading 9402, HTSUS. EN 94.02(A) provides that medical, surgical, dental, or veterinary furniture of heading 9402, HTSUS, includes “beds combined with splints or other dislocation or fracture appliances and the like….[h]owever, when such equipment is of a type designed to be simply attached to, but not fixed to the bed, it falls in heading 90.21…” Moreover, EN 94.02(C) states: Parts of the foregoing articles are classified in this heading provided they are recognizable as such parts. These parts include: Articles of a kind specially designed for fixing to operating tables to immobilise patients (such as shoulder, leg or thigh grips, leg supports, immobilising head-rests, arm or thorax supports and the like). The ENs establish that equipment simply attached to and not fixed to the bed do not fall within heading 9402, HTSUS, and further provide examples of articles that do fall in that heading. Articles must be specifically d