CLA-2 RR:TC:MM 959962 HMC
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