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HQ 085761


November 2, 1989

CLA-2 CO:R:C:G 085761 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.19.80

Mr. Claude Brosseau
A.N. Deringer, Inc.
30 West Service Road
Champlain, N.Y. 12919

RE: "Sonic-Preg" ultrasonic pregnancy scanner

Dear Mr. Brosseau:

This is in reply to your letter of September 7, 1989, on behalf of International R&D, Inc., requesting classification of the "Sonic-Preg", under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The "Sonic-Preg" is an ultrasonic device used in veterinary medicine for diagnosing pregnancy in sows and ewes. It is a hand-held, battery operated unit. The unit is placed against the animal and proper contact is confirmed by a red light. Pregnancy is confirmed by a green light and an audible signal.

ISSUE:

What is the classification of an ultrasonic device used in veterinary medicine for diagnosing pregnancy, under the Harmonized Tariff Schedule of the United States Annotated

LAW AND ANALYSIS:

Chapter 90 provides for medical or surgical instruments and apparatus. The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

Heading 9018 provides for:

Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus... Electro- diagnostic apparatus (including apparatus for functional exploratory examination or for checking physiological parameters)...

The Harmonized Commodity Description and Coding System, Explanatory Notes to Section XVIII, page 1487, state:

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. (Emphasis added).

Although generally indicative of proper interpretation of the various provisions of the Convention, the Explanatory Notes, like other similar publications of the Council, are not legally binding on contracting parties to the Convention. Thus, while they should be consulted for guidance, the Explanatory Notes should not be treated as dispositive. See 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Since this chapter provides for the highly regulated area of human medical instruments and appliances, as well as items used in veterinary medicine, there can be no question that the vast majority of articles provided for here are used only in professional practice by doctors.

However, this Note does not exclude some items that may be used by other than licensed professionals. Additionally, in the area of veterinary medicine, it is difficult to determine who is going to utilize the merchandise at issue since it is frequently not cost-effective for farmers to extensively use licensed veterinarians, for example, merely to determine if livestock is pregnant. Currently, farmers are frequently inoculating, diagnosing, and treating their own livestock, and in the process, are practicing veterinary science.

It is Customs position that it is the nature of the instrument or appliance that would determine classification. Thus, to be classifiable in chapter 90, the instrument does not have to be principally used by licensed veterinarians, however, it must be used principally in veterinary science.

Clearly, the "Sonic-Preg" is a diagnostic tool used in veterinary science and is therefore classifiable under subheading 9018.19.80, HTSUSA, which provides for ultrasonic scanning apparatus.

Subheading 9817.00.50, HTSUSA, provides for the duty-free entry of machinery, equipment and implements to be used for agricultural or horticultural purposes. This is an actual use provision. Notwithstanding the existence of a competing provision or provisions in the HTSUSA, articles are eligible for classification in subheading 9817.00.50 if the conditions and requirements thereof and any applicable regulations are met. The "Sonic-Preg" is an implement to be used for a recognized agricultural or horticultural purpose.

HOLDING:

The "Sonic-Preg" is classifiable under the provision for ultrasonic scanning apparatus in subheading 9018.19.80, HTSUSA. The rate of duty is 4.2% ad valorem. It is, however, eligible for duty-free entry in subheading 9817.00.50 for the reasons stated above.

Effect on Other Rulings:

In Customs ruling letter dated August 4, 1989, (084358), we held that a needle vaccinator for poultry was classifiable under the provision for other articles of iron or steel, in subheading 7326.90.90, HTSUSA, because the vaccinator was to be principally used by the farmer. This ruling will be modified under the authority of section 177.9(d), Customs Regulations.

Sincerely,

John Durant, Director
Commercial Rulings Division

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