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HQ 085877


November 2, 1989

CLA-2 CO:R:C:G 085877 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.31.00

Mr. Stephen McKeever
Davis, Turner & Co.
113 Chestnut Street
Philadelphia, Pa. 19106-3092

RE: Needle Vaccinators

Dear Mr. McKeever:

In a letter to the Area Director of Customs, New York Seaport, dated April 5, 1989, on behalf of your client, Air-Tite Products Co., Inc., you inquired as to the tariff classification of poultry needle vaccinators from Japan. Our ruling #084358 was issued on August 4, 1989, which represented Customs position at that time.

We now conclude that this ruling must be modified. Previously, we interpreted the Harmonized Commodity Description and Coding System, Explanatory Notes to Section XVIII, page 1487, to mean that merchandise classified in this provision must belong to a class or kind of instrument and appliance principally used in professional practice by doctors, dentists and veterinary surgeons.

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).

The Explanatory Notes, although not dispositive, should be looked to for the proper interpretation of the HTSUSA. See 54 Fed. Reg. 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 vaccinate poultry. Currently, farmers are frequently inoculating, diagnosing, and treating their own livestock, and in the process, are practicing veterinary science.

It is now Customs position that it is the nature of the instrument or appliance that would determine classification here. 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 needle vaccinator is used in veterinary science and is therefore classifiable under subheading 9018.31.00, HTSUSA, which provides for syringes, needles, catheters, cannulae and the like.

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 poultry vaccinator is an implement to be used for a recognized agricultural or horticultural purpose.

Therefore, the poultry vaccinator is classifiable under the provision for syringes in subheading 9018.31.00, HTSUSA. The rate of duty is 8.4% ad valorem. It is, however, eligible for duty-free entry in subheading 9817.00.50 for the reasons stated above.

Customs ruling letter dated August 4, 1989, (084358), is hereby modified under the authority of section 177.9(d), Customs Regulations, to reflect this change in interpretation of the Harmonized Commodity Description and Coding System, Explanatory Notes to Section XVIII, page 1487.

Sincerely,

John Durant, Director
Commercial Rulings Division

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