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HQ 085366

December 4, 1989

CLA-2 CO:R:C:G 085366 AJS


TARIFF NO: 9018.90.60; 9018.90.70

Ms. Elaine Jacoby
Miles, Hastings & Joffroy Inc.
Customhouse Brokers
6403 Avenida Costa Norte
Suite 3000
Otay Mesa, California 92073

RE: Tube string subassembly

Dear Ms. Jacoby:

Your letter of August 9, 1989, requesting a tariff classification on behalf of your client Davis & Geck, has been referred to this office for reply.


The article in question is a tube string subassembly of the Vital Vue Irrigation, Suction, and Illumination System Disposable Surgical Instrument (Vital Vue). The subassembly consists of three lengths of plastic tubing bonded together to form separate channels for irrigation, suction, and electrical wires for the light power source. In addition, it contains a threaded suction adapter, a spike connector with protective cap, and a small telephone type electrical connector. The subassembly is also equipped with a small light bulb, which contains a thermistor designed to shut off the bulb when it becomes too hot.


Whether the article in question is properly classifiable within subheading 9018.90.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "[i]nstruments and appliances used in medical, surgical, dental
or veterinary sciences . . . parts and accessories thereof: [o]ther instruments and appliances and parts and accessories thereof: [o]ther: [e]lectro-medical instruments and appliances and parts and accessories thereof: [e]lectro-surgical instruments and appliances . . . all the foregoing and parts and accessories thereof."; or within subheading 9018.90.70, HTSUSA, which provides for other electro-medical instruments and appliances.


Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes.

Heading 9018, HTSUSA, provides for instruments and appliances used in medical, surgical, and veterinary sciences. The submitted literature states that the Vital Vue is used in a wide variety of surgical situations. The article in question is clearly described by the terms of this heading.

Subheading 9018.19.40, HTSUSA, provides for "[e]lectro- diagnostic apparatus . . . parts and accessories thereof: [o]ther: [a]pparatus for functional exploratory examination, and parts and accessories thereof." Explanatory Note (EN) 90.18(IV)(1) describes the type of equipment included in the electro-diagnostic apparatus subheading. The Vital Vue is not described within this note. The submitted literature also does not claim that the article in question is used for diagnostic purposes. Therefore, the tube string assembly is excluded from coverage within this subheading.

Subheading 9018.90.60, HTSUSA, provides for electro-medical instruments and appliances. EN 90.18(IV)(6) lists electro- surgical apparatus as a type of electro-medical apparatus. Electro-surgical apparatus "utilize high frequency electric currents, the needle, probe, etc., forming one of the electrodes. They can be employed to cut tissues (electrocutting) with a lancet (electric lancet), or to coagulate the blood (electrocoagulation). Certain combined instruments may, by the use of control pedals, be made to act interchangeably as electrocutters or electrocoagulators." EN 90.18(IV)(6). This example identifies only one type of electro-surgical apparatus and should not be considered exclusive.

Customs has previously ruled that the provision for electro- cutting and electro-coagulation is not dispositive of

Congressional intent regarding the scope of electro-surgical apparatus. HQ 054332 (1980). This ruling classified an electrical modular system designed to be used for life support in coronary surgery within the provision for electro-surgical apparatus. While this decision was issued under the Tariff Schedules of the United States (TSUS) and therefore is not binding, it can still be considered instructive in interpreting the HTSUSA. H. Rep. No. 100-576, 100th Cong., 2D Sess. 1580 (1988) at 1582.

In addition, Customs has previously classified parts of a surgical illumination system as parts of electro-surgical apparatus. CIE 2198/65. We find these previous rulings instructive in determining the scope of the term "electro- surgical apparatus".

You claim that the article as a whole does not satisfy the description of "electrical". This conclusion is predicated on the argument that although the illumination function is "electrical", the system as a whole is not "electrical" because neither the irrigation nor suction functions are "electrical". The Customs Court rejected this reasoning in Empire Findings Co., v United States (Empire), 44 Cust. Ct. 21, C.D. 2148 (1960). Empire held a medical instrument electrical when the electrical element was an essential feature without which the article could not function for its intended purpose. The device at issue in Empire was used for illumination, drainage and the introduction of medication. These functions are almost exactly, if not identical to the illumination, irrigation and suction functions of the Vital Vue. Therefore, the article in question is "electrical" based on the fact that its illumination function is an essential feature without which the Vital Vue could not function for its intended purpose.

You also claim that the definition of the term "electrical" in Chapter 90, Additional U.S. Note 2 applies to the articles under consideration. The term "electrical" in this note only refers to apparatus which involve the measurement of electrical phenomenon. There are many other types of electrical apparatus, of which the Vital Vue is one, which do not involve the measurement of electrical phenomenon. To rule that an article cannot be considered "electrical" because it does not measure an electrical phenomenon would also contradict rulings such as Empire. Thus, this note does not apply to the articles in question.

Tariff terms are to be construed in accordance with their common and commercial meaning. Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). When determining
the common meaning of a term, courts may consult dictionaries, lexicons, scientific authorities, and other reliable sources as an aid. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The term "electro" is defined as "[a] combining form of electric or electricity . . . Also, esp[ecially] before a vowel, electr-." The Random House Dictionary of the English Language, at 459 (1983). The word "electric" is defined as "[p]ertaining to, derived from, produced by, or involving electricity" or "[p]roducing, transmitting, or operated by electric currents." Id. The article in question satisfies the above descriptions of "electro" and "electric".

The term "surgical" is defined as "of, pertaining to, or correctable by surgery". Dorland's Illustrated Medical Dictionary, 27th Ed., at 1617 (1988). The term "surgery" is defined as the treatment of disease by manual or operative methods. Id. The article in question is used in a wide variety of surgical procedures, and is therefore "pertaining to" surgery. Based on the above definitions, the term "electro-surgical apparatus" commonly means a surgical device operated by or involving electricity.

Parts and accessories for the apparatus of Chapter 90 are classifiable in their respective heading or with the apparatus for which they are solely or principally used. Chapter 90, Notes 2(a) & (b). The tube string subassembly is used solely with the Vital Vue System. There is no respective heading for these subassemblies. Thus, the article in question is classifiable with the Vital Vue System as a part of an electro-surgical apparatus.


The tube string subassembly in question is classifiable within subheading 9018.90.60, HTSUSA, which provides for parts and accessories of electro-surgical apparatus. These items are dutiable at 7.9 percent ad valorem.


John Durant, Director
Commercial Rulings Division

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