CLA-2 CO:R:C:G 085761 MBR
Mr. Claude Brosseau
A.N. Deringer, Inc.
30 West Service Road
Champlain, N.Y. 12919
RE: "Sonic-Preg" ultrasonic pregnancy scanner
Dear Mr. Brosseau:
This is in reply to your letter of September 7, 1989, on behalf
of International R&D, Inc., requesting classification of the
"Sonic-Preg", under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).
FACTS:
The "Sonic-Preg" is an ultrasonic device used in veterinary
medicine for diagnosing pregnancy in sows and ewes. It is a
hand-held, battery operated unit. The unit is placed against the
animal and proper contact is confirmed by a red light. Pregnancy
is confirmed by a green light and an audible signal.
ISSUE:
What is the classification of an ultrasonic device used in
veterinary medicine for diagnosing pregnancy, under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA)?
LAW AND ANALYSIS:
Chapter 90 provides for medical or surgical instruments and
apparatus. The General Rules of Interpretation (GRI's) to the
HTSUSA govern the classification of goods in the tariff schedule.
GRI 1 states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
Heading 9018 provides for:
Instruments and appliances used in medical, surgical,
dental or veterinary sciences, including scintigraphic
apparatus, other electro-medical apparatus... Electro-
diagnostic apparatus (including apparatus for
functional exploratory examination or for checking
physiological parameters)...
The Harmonized Commodity Description and Coding System,
Explanatory Notes to Section XVIII, page 1487, state:
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. (Emphasis added).
Although generally indicative of proper interpretation of the
various provisions of the Convention, the Explanatory Notes, like
other similar publications of the Council, are not legally
binding on contracting parties to the Convention. Thus, while
they should be consulted for guidance, the Explanatory Notes
should not be treated as dispositive. See 54 Fed. Reg. 35127,
35128 (August 23, 1989).
Since this chapter provides for the highly regulated area of
human medical instruments and appliances, as well as items used
in veterinary medicine, there can be no question that the vast
majority of articles provided for here are used only in
professional practice by doctors.
However, this Note does not exclude some items that may be used
by other than licensed professionals. Additionally, in the area
of veterinary medicine, it is difficult to determine who is going
to utilize the merchandise at issue since it is frequently not
cost-effective for farmers to extensively use licensed
veterinarians, for example, merely to determine if livestock is
pregnant. Currently, farmers are frequently inoculating,
diagnosing, and treating their own livestock, and in the process,
are practicing veterinary science.
It is Customs position that it is the nature of the instrument
or appliance that would determine classification. Thus, to be
classifiable in chapter 90, the instrument does not have to be
principally used by licensed veterinarians, however, it must be
used principally in veterinary science.
Clearly, the "Sonic-Preg" is a diagnostic tool used in
veterinary science and is therefore classifiable under subheading
9018.19.80, HTSUSA, which provides for ultrasonic scanning
apparatus.
Subheading 9817.00.50, HTSUSA, provides for the duty-free entry
of machinery, equipment and implements to be used for
agricultural or horticultural purposes. This is an actual use
provision. Notwithstanding the existence of a competing
provision or provisions in the HTSUSA, articles are eligible for
classification in subheading 9817.00.50 if the conditions and
requirements thereof and any applicable regulations are met. The
"Sonic-Preg" is an implement to be used for a recognized
agricultural or horticultural purpose.
HOLDING:
The "Sonic-Preg" is classifiable under the provision for
ultrasonic scanning apparatus in subheading 9018.19.80, HTSUSA.
The rate of duty is 4.2% ad valorem. It is, however, eligible
for duty-free entry in subheading 9817.00.50 for the reasons
stated above.
Effect on Other Rulings:
In Customs ruling letter dated August 4, 1989, (084358), we
held that a needle vaccinator for poultry was classifiable under
the provision for other articles of iron or steel, in subheading
7326.90.90, HTSUSA, because the vaccinator was to be principally
used by the farmer. This ruling will be modified under the
authority of section 177.9(d), Customs Regulations.
Sincerely,
John Durant, Director
Commercial Rulings Division