United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1990 HQ Rulings > HQ 0086009 - HQ 0086079 > HQ 0086057

Previous Ruling Next Ruling


HQ 086057


February 2, 1990

CLA-2 CO:R:C:G 086057 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.10.2000; 9018.19.8050

Mr. Earl A. Aversano
President
Innovative Medical Marketing Associates
226 Sunny Jim Drive
Medford, NJ 08055

RE: Carbon Monoxide Monitors; Reconsideration of NYRL 845201

Dear Mr. Aversano:

This is in reply to your letter dated October 27, 1989, to our New York office, in which you requested reconsideration of New York Ruling Letter (NYRL) 845201 dated September 15, 1989.

FACTS:

In NYRL 845201 we ruled that two carbon monoxide monitors, imported from England and marketed as the EC50 Micro Smokerlyzer and the EC50 Mini Smokerlyzer, were classifiable in subheading 9027.10.2000, HTSUSA, under the provision for electrical gas or smoke analysis apparatus. You contend that the Smokerlyzers should instead have been classified in subheading 9018.19.8050, HTSUSA, under the provision for electro-diagnostic apparatus, other, other, other.

In NYRL 845201, classification in heading 9018, HTSUSA, was denied because it appeared that the Smokerlyzer would be used principally by nonmedical people. In your request for reconsideration, you submitted additional information, in the form of articles from professional journals such as Preventive Medicine and the British Medical Journal, in support of your contention that the articles in question will indeed be used by medical professionals.

The articles in question, the EC50 Micro and Mini Smokerlyzers, are portable, battery operated instruments used to measure carbon monoxide and carboxyhemoglobin levels from expired breath. Both the Micro and Mini consist of a carbon monoxide sensor, sampling system, plastic carrying case, calibration kit and disposable mouthpieces.

The Smokerlyzers' sampling system traps a patient's expired breath. This is read by the sensor and results in an electrical signal directly proportional to the patient's carbon monoxide level. The signal is displayed in parts per million on the face of the instrument, thus enabling doctors, therapists and other professional counselors to quantify their patients' smoking habits, and thereby monitor their patients's compliance with prescribed forms of treatment.

ISSUE:

Whether the Smokerlyzers are classifiable in heading 9027, HTSUSA, or alternatively in heading 9018, HTSUSA.

LAW AND ANALYSIS:

Articles are classified under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of articles is to be determined according to the terms of the headings and any relative section or chapter notes and, provided the headings or notes do not otherwise require, according to the remaining GRIs taken in order.

Heading 9027, HTSUSA, provides for, inter alia, instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus). The range of instruments covered by this heading are discussed in greater detail in the Explanatory Notes, which constitute the official interpretation of the Harmonized System at the international level. The Explanatory Note to heading 9027 states in relevant part:

(8) Gas or smoke analysis apparatus. These are used to analyze combustible gases or combustion by-products (burnt gases) in coke ovens, gas producers, blast furnaces, etc., in particular, for determining the amount of carbon dioxide, carbon monoxide, oxygen, hydrogen, nitrogen or hydrocarbons. Electrical gas or smoke analysis apparatus are mainly used for determining and measuring the content of the following gases: carbon dioxide, carbon monoxide and hydrogen, oxygen, hydrogen, sulphur dioxide, ammonia.

The Smokerlyzers are not used to analyze burnt gases from coke ovens, blast furnaces and the like and therefore are not classifiable in heading 9027.

Heading 9018, HTSUSA, covers instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments. The Explanatory Note to 9018 states in relevant part:

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.

Thus the instruments classifiable in this heading are in most, but not all, instances, used only in a professional medical practice. Furthermore, Subnote (I), Instruments and Appliances for Human Medicine or Surgery, provides that spirometers (which assess lung capacity) are included among the special diagnostic instruments and apparatus of the heading. Since Smokerlyzers assess lung capacity by measuring carbon monoxide they are covered by heading 9018, so long as they are used, in the vast majority of cases, in professional practice.

The EC50 Series Smokerlyzers and similar carbon monoxide monitors have been the subject of articles in a number of professional journals. In an article entitled "Low Cost Carbon Monoxide Monitors in Smoking Assessment," Jarvis, Belcher, Vesey & Hutchison, 41 Thorax 886, 886 (1986), the authors state:

It has also been reported that feedback of carbon monoxide concentrations may enhance the efficacy of a general practioner's advice to stop smoking, suggesting a widespread potential application in primary care and hospital outpatient settings. (emphasis added).

Similarly, in an article entitled "Comparison of Tests Used to Distinguish Smokers from Nonsmokers," Jarvis, Tunstall-Pedoe, Feyerabend, Vesey & Saloojee, 77 Am. J. Public Health 1435, 1437- 38 (1987), the authors note:

Our findings have implications for clinical practice in hospitals and other settings where patients may present with smoking-related disease...At the same time, the success of objective tests in identifying smokers means that the clinician can escape from dependence on unreliable self- report. (emphasis added).

Again, in "Controlled Trial of Three Different Antismoking Interventions in General Practice," Jamrozik, Vessey, Fowler, Wald, Parker & Van Vunakis, 288 British Medical Journal 1499, 1502 (1984), the authors write:

Advice against smoking given during routine consultations in general practice is a cheap and simple method of reaching a very large proportion of smokers, given that two thirds of the population consults a general practitioner at least once every year. The results of this study confirm that such intervention has a useful effect. (emphasis added).

In order to be classified in heading 9018, an instrument must, in the vast majority of cases, be used in professional practice to prevent or treat an illness. It is Customs' position, in light of the medical journals cited above, that the EC50 Series Smokerlyzers will indeed be used in such a manner. The articles surveyed suggest that the Smokerlyzers will expand the physician's role in smoking cessation therapy. Not only are people generally more aware of the hazards of smoking, but the Smokerlyzer represents an advance on previous technology in that it is a cheaper, more rapid, less invasive method of testing.

Finally, while other carbon monoxide tests are more accurate, the Smokerlyzer is sufficiently accurate for use by general practioners. Thus the Smokerlyzer offers a simple, cost effective, and relatively accurate means for testing carbon monoxide levels. Given the heightened awareness of the dangers of smoking and increased attempts by individuals to break the habit, it is Customs' view that the Smokerlyzer will find widespread use in the medical community. Since it is likely to be used, in the vast majority of cases, in professional practice to make diagnoses, or to counsel against smoking and thereby prevent smoking-related illnesses, it is the type of instrument intended to be covered by heading 9018, HTSUSA.

HOLDING:

The articles in question, the EC50 Series Micro and Mini Smokerlyzers, are classifiable in subheading 9018.19.8050, HTSUSA, under the provision for electro-diagnostic apparatus..., other, other, other apparatus, and is dutiable at the rate of 4.2 percent ad valorem.

Pursuant to section 177.9 of the Customs Regulations (19 CFR 177.9), NYRL 845201 of September 15, 1989, is modified in conformity with the foregoing.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling

See also: