HQ 085877: Needle Vaccinators

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 085877

                        November 2, 1989


CLA-2 CO:R:C:G  085877  MBR

CATEGORY:  Classification

TARIFF NO.:  9018.31.00

Mr. Stephen McKeever
Davis, Turner & Co.
113 Chestnut Street
Philadelphia, Pa. 19106-3092

RE:  Needle Vaccinators

Dear Mr. McKeever:

  In a letter to the Area Director of Customs, New York Seaport,
dated April 5, 1989, on behalf of your client, Air-Tite Products
Co., Inc., you inquired as to the tariff classification of
poultry needle vaccinators from Japan.  Our ruling #084358 was
issued on August 4, 1989, which represented Customs position at
that time.

  We now conclude that this ruling must be modified.  Previously,
we interpreted the Harmonized Commodity Description and Coding
System, Explanatory Notes to Section XVIII, page 1487, to mean
that merchandise classified in this provision must belong to a
class or kind of instrument and appliance principally used in
professional practice by doctors, dentists and veterinary
surgeons.

  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).

  The Explanatory Notes, although not dispositive, should be
looked to for the proper interpretation of the HTSUSA.  See 54
Fed. Reg. 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 vaccinate poultry.
Currently, farmers are frequently inoculating, diagnosing, and
treating their own livestock, and in the process, are practicing
veterinary science.

  It is now Customs position that it is the nature of the
instrument or appliance that would determine classification here.
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 needle vaccinator is used in veterinary science
and is therefore classifiable under subheading 9018.31.00,
HTSUSA, which provides for syringes, needles, catheters,
cannulae and the like.

  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
poultry vaccinator is an implement to be used for a recognized
agricultural or horticultural purpose.

 Therefore, the poultry vaccinator is classifiable under the
provision for syringes in subheading 9018.31.00, HTSUSA.  The
rate of duty is 8.4% ad valorem.  It is, however, eligible for
duty-free entry in subheading 9817.00.50 for the reasons stated
above.

  Customs ruling letter dated August 4, 1989, (084358), is hereby
modified under the authority of section 177.9(d), Customs
Regulations, to reflect this change in interpretation of the
Harmonized Commodity Description and Coding System, Explanatory
Notes to Section XVIII, page 1487.

                              Sincerely,


                              John Durant, Director
                              Commercial Rulings Division