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HQ 958515




February 14, 1996

CLA-2 RR:TC:MM 958515 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9026.80.20; 9031.80.00

Port Director
U.S. Customs Service
P.O. Box 1490
Room 218
St. Albans, Vermont 05478

RE: Protest 0201-95-100176; Infusion Device Analyzers; Pacemaker Analyzers;
HQ 954304; NY 859997; headings 9021, 9030; EN 90.26; EN 90.31; chapter 90, note 2(a)

Dear Port Director:

The following is our decision regarding Protest 0201-95-100176, which concerns the classification of Infusion Device Analyzers and Pacemaker Analyzers under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered on November 8 and December 1, 1994, and the entries were liquidated on February 24 and March 17, 1995. The protest was timely filed on May 2, 1995.

FACTS:

The "Infusion Device Analyzers (IDA-2)" check the accuracy of flow and delivered volume for a wide variety of infusion devices, including syringe, drop count, peristaltic and volumetric types. The analyzers directly measure both the flow rate (flow of low viscosity fluids from pumps or controllers) and pressure (occlusion pressure which an infusion device can apply to a blocked tube) coming from the tested device and provides a hard copy printout. The user can then analyze the results.

The "Pacemaker Analyzers (PMA-1)" are designed to test all types of external cardiac pacemakers, including invasive and non-invasive (trans-thoracic) types. The microprocessor-based analyzers enable measurement and display of output voltage, - 2 -
output current, pulse width, pulse rate, A-V interval, wave sensitivity inhibit rate, tack over rate, sensed and pulsed refractory period and susceptibility to outside interference. These analyzers are not worn, carried or implanted in the body. They provide "quick, simplified pacemaker testing," and replace the following test devices necessary for most pacemaker checkout procedures: an oscilloscope; refractory period delay circuit; ECG simulator; period counter; test load; and frequency generator.

The infusion device analyzers were entered under subheading 9026.80.20, HTSUS, which provides for other electrical instruments and appliances for measuring or checking the flow, level, pressure or other variables of liquids or gases. The pacemaker analyzers were entered under subheading 9021.90.40, HTSUS, which provides for pacemaker parts and accessories. Both analyzers were classified upon liquidation under subheading 9031.80.00, HTSUS, which provides for other measuring or checking instruments, appliances and machines, not specified or included elsewhere in chapter 90, HTSUS.

ISSUE:

Whether the infusion device analyzers and pacemaker analyzers are classifiable as other measuring or checking instruments, appliances and machines, not specified or included elsewhere in chapter 90, HTSUS, under subheading 9031.80.00, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 9031, HTSUS, provides for "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter
(emphasis added)." Accordingly, if the analyzers are classifiable in another chapter 90 heading, they cannot be classified under heading 9031, HTSUS.

The protestant contends that the infusion device analyzers are classifiable under heading 9026, HTSUS, which provides for electrical instruments and appliances for measuring or checking the flow, level, pressure or other variables of liquids or gases. EN 90.26, pg. 1511, states that heading 9026, HTSUS, covers flowmeters which "indicate the rate of flow (in volume or weight per unit of time) and are used for measurement of flow both through open channels (rivers, waterways, etc.) and through closed conduits (piping, etc.)." EN 90.26, pg. 1512, further states that the heading covers pressure gauges which "indicate the pressure of a liquid or gas in a closed space."

The infusion device analyzers are flow and pressure measuring devices which check the accuracy of a wide variety of infusion devices. They directly measure both the flow rate and pressure coming from the tested device ("closed conduit" or "space") for the purpose of determining flow and pressure (rather than, for example, determining leakage or structural integrity, which may not be covered by heading 9026, HTSUS). Accordingly, the infusion device analyzers are classifiable under heading 9026, HTSUS, specifically under subheading 9026.80.20, HTSUS, which provides for other electrical instruments for measuring or checking the flow or pressure of liquids or gases. See NY 859997, issued to the protestant on February 13, 1991 (wherein the "IDA-1" infusion device analyzers were classified under subheading 9026.80.20, HTSUS).

The protestant contends that the pacemaker analyzers are classifiable under subheading 9021.90.40, HTSUS, which provides for pacemaker parts and accessories. Note 2(a) to chapter 90, HTSUS, provides that "[p]arts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings." Thus, if the pacemaker analyzers are "goods included" in a chapter 90 heading, they cannot be classified as parts under heading 9026, HTSUS, even if they are considered to be parts or accessories of pacemakers (which they are not). See HQ 954304, dated June 28, 1993 (concerning the application of note 2(a) to chapter 90, HTSUS, to other articles claimed to be parts of pacemakers).

Heading 9030, HTSUS, provides for instruments and apparatus for measuring or checking electrical quantities. The pacemaker analyzers are designed to determine whether a pacemaker is functioning properly by analyzing a variety of electrical and non-electrical parameters, including output voltage, pulse rate, height and width of the electrical signal, wave sensitivity and susceptibility to outside interference. Because the analyzers measure both electrical and non-electrical quantities (i.e., pulse rate), they cannot be classified under heading 9030, HTSUS.

EN 90.31, pg. 1529, provides that heading 9031, HTSUS, "covers measuring or checking instruments, appliances and machines, whether or not optical. It should, however, be noted that this group does not include any instruments, apparatus, etc., falling in headings 90.01 to 90.12 or 90.15 to 90.30 . . . ." The pacemaker analyzers are designed to measure various electrical and non-electrical features of a pacemaker, and are not described by headings 9001 to 9012, HTSUS, or 9015 to 9030, HTSUS. Accordingly, the analyzers are classifiable under heading 9031, HTSUS, specifically under subheading 9031.80.00, HTSUS, which provides for other measuring instruments, not specified or included elsewhere in chapter 90, HTSUS.

HOLDING:

The "Infusion Device Analyzers" are classifiable under subheading 9026.80.20, HTSUS, while the "Pacemaker Analyzers" are classifiable under subheading 9031.80.00, HTSUS.

The protest should be GRANTED with regard to the "Infusion Device Analyzers," but DENIED with regard to the "Pacemaker Analyzers." In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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