H325669

HQ H325669 October 6, 2022 CLA-2 OT:RR:CTF:EMAIN H325669 PF CATEGORY: Classification TARIFF NO.: 4009.11 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 

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