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 > 1997 HQ Rulings > HQ 959946 - HQ 960089 > HQ 959962

Previous Ruling Next Ruling
HQ 959962




June 5, 1997

CLA-2 RR:TC:MM 959962 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.90.30 and 9018.90.75

Port Director of Customs
610 South Canal Street
Chicago, IL 60607

RE: PRD 3901-96-101137; Bard's PCA II and InfusO.R. pumps; subheadings 9018.90.30, 9018.90.75 and 9018.90.80; Explanatory Note 90.18; Instruments and Appliances used in Medical, Surgical, Dental or Veterinary Sciences; Anesthetic Instruments and Appliances; Other Electro-Medical Instruments and Appliances; HQs 954377, 556800 and 085366.

Dear Port Director:

This is our decision on Protest 3901-96-101137, filed against your classification of the Bard's PCA II and InfusO.R. pumps. The entries under protest were liquidated on February 9, 1996, and this protest timely filed on May 9, 1996.

FACTS:

The merchandise under protest consists of the Bard's Patient Controlled Analgesic II (PCA II) and InfusO.R. syringe infusion pumps which require batteries or electric current to operate. According to the evidence submitted by the protestant, the PCA II is an intravenous infusion pump which uses a syringe to allow for continuous and intermittent infusion of anesthetics for acute pain management and may be administered by doctors, nurses and other medical personnel within a hospital setting. The InfusO.R. pump is described as an intravenous infusion pump used by an anesthesiologist in a surgical setting which delivers a variety of anesthetic drugs to the patient during surgery. Infusion parameters can be changed in this pump with magnetically coded, drug-specific labels. Each label is configured with the specifications for infusion recommended by the drug manufacturer.

The merchandise was entered under a provision for anesthetic instruments and appliances under subheading 9018.90.30 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the entries were liquidated under subheading 9018.90.80, HTSUS, as other medical instruments and appliances.

The provisions under consideration are as follows:

9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus and sight-testing instruments; parts and accessories thereof:

9018.90 Other instruments and appliances and parts and accessories thereof:

Other:
9018.90.30 Anesthetic instruments and appliances and parts and accessories thereof...2.3%

Electro-medical instruments and appliances and parts and accessories thereof:

Other:

9018.90.75 Other...1.7%

9018.90.80 Other...3.2%

ISSUE:

Whether the infusion pumps are classifiable as anesthetic instruments and appliances under subheading 9018.90.30, HTSUS, as other electro-medical instruments and appliances under subheading 9018.90.75, HTSUS, or as other medical instruments under subheading 9018.90.80, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 6 states that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the Notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The Port Director agrees with the protestant that the infusion pumps are provided for in heading 9018, HTSUS, as instruments used in medical, surgical, dental or veterinary sciences. However, protestant disagrees with Customs' classification of the merchandise at the subheading level and contends that it is classifiable under subheading 9018.90.30, as anesthetic instruments and appliances on the basis that both infusion pumps are used to provide anesthesia as that term is defined within the medical profession. Accordingly, we must determine whether the infusion pumps are anesthetic instruments.

EN 90.18, at page 1610, states that

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.

This EN further states that this group includes (E) Anesthetic apparatus and instruments (face masks, face-piece harness, intratracheal tubes, etc.). The Section and Chapter Notes and the ENs do not provide a clear definition of the term "anesthetic apparatus."

We are aware of only one ruling which dealt with subheading 9018.90.30, HTSUS. In Headquarters Ruling (HQ) 954377, dated October 6, 1993, Customs classified various components of NARKOMED anesthesia systems. In the intra-operative environment, the NARKOMED systems facilitated delivery of anesthetic agents to the patient, and kept the patient breathing during the operation. Also, in the post-operative environment, the machines were used in respiratory therapy. Customs found that the anesthetic systems performed a function described by the ENs to heading 9018, HTSUS. It found that the marketing literature described the anesthetic systems as "a continuous-flow anesthesia system capable of delivering up to four gases and three liquid anesthetic agents." The ruling further found that the intra-operative respiratory therapy function performed by these systems was part of the anesthetic process. Any other function performed by the systems was ancillary to their anesthetic functions. It then classified the anesthesia systems under subheading 9018.90.30, HTSUS.

This ruling does not elaborate however on the term "anesthetic apparatus." A tariff term that is not defined in the text of the HTSUS and the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA)Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

The term "anesthetic apparatus" is not specifically defined by medical dictionaries. We thus have to ascertain its meaning by looking at related terms. The term "anesthetic" is defined in Dorland's Illustrated Medical Dictionary 75 (28th ed.) as "characterized by anesthesia." We note that Protestant cites Dorland's Illustrated Medical Dictionary 72 (26th ed.) which defines the term "anesthesia" as "loss of the sensation of pain, as it is induced to permit the performance of surgery or other painful procedures." Also, the term "apparatus" is defined in Stedman's Medical Dictionary 108 (25th ed. Illustrated) as "a collection of instruments adapted for a special purpose." Based on these definitions of the terms "anesthesia" and "apparatus" and in line with the foregoing ruling, we believe that in order for an article to be classified as anesthetic apparatus in subheading 9018.90.30, HTSUS, it must be designed to perform the special function of providing an anesthetic for loss of the sensation of pain to permit the performance of surgery or other similar painful procedures.

Protestant cites HQ 556800, dated March 15, 1994, to support the contention that the infusion pumps are the kinds of articles contemplated under subheading 9018.90.30, HTSUS. Although, after applying GRI 3(b), that ruling classified an anesthesia breathing bag in heading 9033, HTSUS, it determined that the merchandise was prima facie classifiable in heading 9018, HTSUS, since it was used exclusively for anesthesiology purposes. Protestant states that like the breathing bag, both infusion pumps should be considered anesthetic instruments. We agree with the Protestant's contention as to the Bard's InfusO.R. pump.

With regard to the Bard's InfusO.R. pump, we find that it performs the special function of providing an anesthetic for loss of the sensation of pain to permit the performance of surgery or other similar painful procedures. The marketing literature provides that the InfusO.R. syringe pump is automatically programmed to deliver a wide variety of drugs for anesthesia. Furthermore, infusion parameters can be changed with magnetically coded, drug-specific labels. Each label is configured with the specifications for infusion recommended by the drug manufacturer. We thus believe, that the InfusO.R. pump is designed to permit the delivery of anesthetic drugs exclusively by an anesthesiologist in a surgical setting. We find that the InfusO.R. pump performs a function contemplated by the ENs to heading 9018, HTSUS, and is therefore a type of anesthetic apparatus of subheading 9018.90.30, HTSUS.

With regard to the Bard's PCA II, we find that it is not an anesthetic apparatus of subheading 9018.90.30, HTSUS. There is not sufficient evidence to show that this instrument will be used in the operating room or in any other similar painful procedures. We thus believe that the PCA II is designed to provide relief to patients in long-term care facilities or in the patient's home. The name itself -- Patient Controlled Analgesic II -- confirms this finding. We therefore conclude that the Bard's PCA II is not the kind of article contemplated in subheading 9018.90.30, HTSUS. It is instead classifiable under subheading 9018.90.75, HTSUS, as other electro-medical instruments and appliances since this pump is powered by batteries or electric current. See HQ 085366.

HOLDING:

Under the authority of GRI 1, both the Bard's InfusO.R. pump and the PCA II pump are provided in heading 9018, HTSUS. However, for the reasons stated above, the Bard's PCA II pump is reclassified under subheading 9018.90.75, HTSUS, as electro-medical instruments and appliances: other: other: other. The Bard's InfusO.R. pump is reclassified under subheading 9018.90.30, HTSUS, as anesthetic instruments and appliances.

This protest should be GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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 to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

Previous Ruling Next Ruling

See also: