CLA-2 CO:R:C:M 954377 LTO
Ms. Kathleen Crawford
BDP International Inc.
1017 4th Avenue
Lester, Pennsylvania 19029-1813
RE: NARKOMED anesthesia system; parts thereof; chapter 90, note
2; 19 CFR 177.2(b)(2)(ii)(A)
Dear Ms. Crawford:
This is in response to your letter of June 3, 1993, on
behalf of North American Drager, requesting the classification of
components for "NARKOMED" anesthesia systems under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The articles in question are various components of NARKOMED
anesthesia systems. In the intra-operative environment, the
NARKOMED systems facilitate delivery of anesthetic agents to the
patient, as well as, keep the patient breathing during the
operation. In the post-operative environment, you state that the
machines may be used in respiratory therapy. When used in
respiratory therapy (both intra- and post-operative), the systems
utilize the breathing or respiratory circuit of the machine.
When used to deliver anesthetic agents, the gases must flow
through the systems' breathing or respiratory circuit.
ISSUE:
Whether the NARKOMED systems are classifiable as anesthetic
instruments and appliances under subheading 9018.90.30, HTSUS, or
as ozone therapy, oxygen therapy, aerosol therapy, artificial
respiration or other therapeutic respiration apparatus under
subheading 9019.20.00, HTSUS.
- 2 -
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 (EN) constitute the Customs Co-operation
Council's official interpretation of the Harmonized System.
While not legally binding, 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.
EN 90.18, pg. 1487, states that heading 9018, HTSUS, "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, . . .), either to make a diagnosis,
to prevent or treat an illness or to operate, etc." The note,
pg. 1490, further states that the instruments and appliances for
human medicine or surgery of this heading include anesthetic
apparatus and instruments (i.e., face masks, face-piece
harnesses, intratracheal tubes, etc).
On the other hand, EN 90.19, pg. 1494, states that heading
9019, HTSUS, covers oxygen therapy, artificial respiration or
other therapeutic respiration apparatus, which "are used in cases
of drowning, electrocution, acute poisoning (e.g., carbon
monoxide), for weak newly-born babies, post-operative shock,
infantile paralysis (poliomyelitis), acute asthma, insufficient
lung development, etc."
The systems in question are anesthetic systems. They
perform a function described by the ENs to heading 9018, HTSUS.
The NARKOMED 4, for example, is described by the marketing
literature as "a continuous-flow anesthesia system capable of
delivering up to four gases and three liquid anesthetic agents."
The intra-operative respiratory therapy function performed by
these systems is part of the anesthetic process. Any other
function performed by the systems is ancillary to their
anesthetic functions. Thus, the NARKOMED anesthesia systems are
classifiable under heading 9018, HTSUS, specifically under
subheading 9018.90.30, HTSUS.
You have requested a binding ruling for various components
of the NARKOMED anesthesia systems. Section 177.2(b)(2)(ii)(A)
of the Customs Regulations [19 CFR 177.2(b)(2)(ii)(A)], states
that "[i]ndividual requests for rulings . . . will be limited to
five (5) merchandise items, all of which must be of the same
class or kind." Because your request involves more than five - 3 -
items, we will not consider the classification of the individual
components of the NARKOMED systems. However, the following
provides guidance as to the classification of parts for machines
of chapter 90, HTSUS.
Note 2 to chapter 90, which governs the classification of
parts for chapter 90 machines, provides as follows:
Subject to note 1 above, parts and accessories for
machines, apparatus, instruments or articles of this
chapter are to be classified according to the
following rules:
(a) Parts 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;
(b) Other parts and accessories, if suitable for
use solely or principally with a particular
kind of machine, instrument or apparatus, or a
number of machines, instruments or apparatus of
the same heading . . . are to be classified
with the machines, instruments or apparatus of
that kind;
(c) All other parts and accessories are to be
classified in heading 9033 [underlining added].
Note 2(a) requires that parts or accessories which in
themselves constitute articles falling in a particular heading of
chapter 84, 85, 90 or 91, be classified in that particular
heading. Thus, the components of the NARKOMED systems are
classifiable as parts under heading 9018, HTSUS (under subheading
9018.90.30), only if they are not covered by a particular heading
of chapter 84, 85, 90 or 91.
HOLDING:
The NARKOMED anesthesia systems are classifiable under
subheading 9018.90.30, HTSUS, which provides for anesthetic
instruments and appliances.
Sincerely,
John Durant, Director
Commercial Rulings Division