CLA-2 R:C:M 958115 JAS
Mr. Joseph J. Kenny
Liberty International, Inc.
470 Main Street
Pawtucket, RI 02860
RE: Livestock Marker, Crayon Filled Tube for Marking or
Identifying Farm Animals, Heading 9609; Cannula Used With
Syringes for Inoculating Farm Animals, 9018; Implements for
Agricultural or Horticultural Use, Heading 9817.00.50;
Actual Use, 19 CFR 10.131-10.138
Dear Mr. Kenny:
Your letter of June 5, 1995, to the Customs port at
Providence, has been referred to this office for reply. Your
inquiry, on behalf of Cotran Corp., concerns the tariff
classification of certain crayon markers and cannulae for
syringes, both used with livestock. Samples were submitted.
FACTS:
The crayon is tubular shaped, 4 3/4 inches long and 1 1/3
inch in diameter. It consists of a retractable, colored waxy
material encased in a layered paper sheath, with a protective
plastic top. The crayon is said to be for use in marking
livestock for identification, such as inoculation, separation
purposes, etc. The articles you refer to as cannulae are hollow
needle-like tubes of metal, nearly 1 7/8 inch long in a plastic
protective sheath. They have a contoured point at one end and a
hollow metal fitting at the other end to permit attachment to a
syringe. They are said to be for use in inoculating or feeding
farm animals.
Because the importer states he intends to use these articles
in agricultural pursuits, you contend the provision for
machinery, equipment and implements to be used for agricultural
or horticultural pursuits, in heading 9817.00.50, Harmonized
tariff Schedule of the United States (HTSUS) is applicable.
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The provisions under consideration are as follows:
9018 Instruments and appliances used in medical,
surgical, dental or veterinary sciences,
including scintigraphic apparatus, other
electro-medical apparatus and sight-testing
instruments; parts and accessories thereof:
Syringes, needles, catheters, cannulae
and the like;
9018.32.00 Tubular metal needles and needles
for sutures and parts and
accessories thereof...5.1 percent
* * * *
9609 Pencils (other than those pencils of heading
9608), crayons, pencil leads, pastels,
drawing charcoals, writing or drawing chalks
and tailors' chalks:
9609.10.00 Pencils and crayons with leads
encased in a rigid sheath
...14 cents/gross + 14.3 percent
* * * *
9817.00.50 Machinery, equipment and implements to be
used for agricultural or horticultural
purposes...Free
ISSUE:
Whether the livestock marker and cannulae are agricultural
or horticultural implements for tariff purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (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.
As indicated, heading 9609 provides, among other things, for
crayons, eo nomine by name. The livestock markers, as described,
are within the common meaning of the term crayon for purposes of
heading 9609. Instruments and appliances of heading 9018 need
not necessarily be used in professional practice; rather, it is - 3 -
the nature of the instrument or appliance that determines whether
it is encompassed by heading 9018. In this case, the style of
the point, relatively large diameter of the lumen, and other
physical characteristics of the article referred to as a cannula,
together with statements of intended use, lead us to conclude it
is principally used in veterinary science. However, we disagree
that it is a cannula. The term cannula denotes a tube used for
drainage or for withdrawing bodily fluids, often fitted with a
trocar or sharp pointed instrument to pierce the body cavity.
The trocar is then withdrawn leaving the hollow cannula to
perform its intended function. As described, the article in
question does not function in this manner. However, needles are
among the instruments and appliances provided for in heading
9018. Slender hollow instruments for introducing material into
or withdrawing material from the body parenterally are among
articles that are needles for tariff purposes. The articles you
refer to as cannula are needles of heading 9018.
Heading 9817.00.50, HTSUS, accords free entry to machinery,
equipment and implements to be used for agricultural or
horticultural purposes. This is a provision governed by actual
use. Notwithstanding the existence of a competing provision or
provisions in the HTSUS, the livestock markers and needles are
eligible for classification in heading 9817.00.50 if the
conditions and requirements thereof and any applicable
regulations are met. Initially, articles of headings 9018 and
9609 are not excluded from heading 9817.00.50 by the U.S. Notes
to Chapter 98, Subchapter XVII, HTSUS. Secondly, the marking of
farm animals to identify them for purposes of special feeding,
medical treatment, slaughter, etc. and utilizing needles to
provide nutrition or medicines sufficiently relate to the care
and maintenance of livestock as to qualify as legitimate
agricultural pursuits. Finally, entries under heading 9817.00.50
must conform to applicable Customs Regulations where the rate of
duty depends on actual use.
HOLDING:
Under the authority of GRI 1, the livestock markers are
provided for in heading 9609. They are classifiable in
subheading 9609.10.00, HTSUS. Under the authority of GRI 1, the
needles are provided for in heading 9018. They are classifiable
in subheading 9018.32.00, HTSUS.
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The livestock markers and needles are eligible for free
entry under the provisions of heading 9817.00.50, upon compliance
with sections 10.131 through and including 10.139, Customs
Regulations.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division