The tariff classification of surgery kits from Israel

N207455 March 28, 2012 CLA-2-90:OT:RR:NC:4:405 CATEGORY: Classification TARIFF NO.: 9018.90.7580; 9817.00.96 John M. Peterson Russell A. Semmel Neville Peterson, LLP Counsellors at Law 17 State Street – 19th Floor New York, New York 10004 RE: The tariff classification of surgery kits from Israel Dear Mr. Peterson and Mr. Semmel: In your letter dated March 2, 2012, for Medtronics, you requested a tariff classification ruling. No samples were provided. You describe them as ENT surgery sets. We take ENT to be Ear, Nose and Throat, which is the type of surgeon who would normally make use of them. It is specifically the AIRvance THS System. From the Medtronic web site, we take THS to be Tongue and Hyoid Suspension. You state the kits are used in the related procedures of “tongue suspension (or genioglossus advancement) and hyoid suspension (or hyoid myotomy).” You also state, “In its condition as imported, Airvance includes a bone screw implanting device, a suture passer, tiny titanium screws, sutures, needles and instruments such as a tongue retractor for use in the surgeries.” The surgery is used to reduce incidents of obstructive sleep apnea, in which the sleeper stops breathing, for several seconds or for minutes, to awaken with a start. We believe invasive surgery of this type would be used normally only for the relatively severe and chronic cases. You propose classification under HTSUS 9018.90.8000. However, while we agree that, under GRI 3, the essential character of the kit is supplied by the items classified, per se, in HTSUS 9018, we believe that, within HTSUS 9018, the last subheading which equally merits consideration in supplying that essential character is 9018.90.75, which includes the Bone Screw Inserter. Per the copy of the Medtronic brochure you supplied, the Bone Screw Inserter is battery operated, makes a 180 degree turn from its handle, and “deploys the bone screw with suture into the mandible.” We note that only the Bone Screw Inserter is pictured on the cover and first page of the brochure. The applicable subheading for the AIRvance THS kit will be 9018.90.7580, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "other" Electro-medical instruments and appliances and parts and accessories thereof. The rate of duty will be free. Regarding your claim of duty free treatment under HTSUS 9817.00.96, we believe that severe and chronic sleep apnea is a physical impairment which substantially limits one or more major life activities, in particular, breathing, noting HTSUS, Chapter 98, Subchapter 17, U.S. Note 4.  Although HTSUS, Chapter 98, Subchapter 17, U.S. Note 4-b-iii excludes therapeutic articles, CBP has held that term to apply quite narrowly for the purposes of  HTSUS 9817.00.96. See, e.g., Headquarters Ruling Letter 561940- KSG, dated February 7, 2001, which applied HTSUS 9817.00.96 to microscopes designed for use in eye surgeries such as retinal reattachment.  On that basis, we agree that a secondary classification will apply for these items in HTSUS 9817.00.96, as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped (except articles for the blind), free of duty and user fees (if any).  Note that the requirement that the importer prepare and file a U.S. Department of Commerce form ITA-362P has been eliminated via a notice from the International Trade Administration, published in the Federal Register of June 1, 2010.  Also note that this classification has no effect on any quota, visa, or restricted merchandise requirements or dumping/countervailing duties.     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 J. Sheridan at (646) 733-3012. Sincerely, Thomas Russo Director National Commodity Specialist Division