HQ 958515: Protest 0201-95-100176; Infusion Device Analyzers;Pacemaker Analyzers; HQ 954304; NY 859997; headings 9021, 9030; EN 90.26; EN90.31; chapter 90, note 2(a)

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 958515

                        February 14, 1996
                                                               


CLA-2 RR:TC:MM  958515 LTO

CATEGORY:  Classification

TARIFF NO.:  9026.80.20; 9031.80.00

Port Director
U.S. Customs Service
P.O. Box 1490
Room 218
St. Albans, Vermont 05478

RE:       Protest 0201-95-100176; Infusion Device Analyzers;
Pacemaker Analyzers; 
     HQ 954304; NY 859997; headings 9021, 9030; EN 90.26; EN
90.31; chapter 90,  note 2(a)

Dear Port Director:

     The following is our decision regarding Protest 0201-95-100176, which concerns the classification of Infusion Device
Analyzers and Pacemaker Analyzers under the Harmonized Tariff
Schedule of the United States (HTSUS).  The subject merchandise
was entered on November 8 and December 1, 1994, and the entries
were liquidated on February 24 and March 17, 1995.  The protest
was timely filed on May 2, 1995.

FACTS:

     The "Infusion Device Analyzers (IDA-2)" check the accuracy
of flow and delivered volume for a wide variety of infusion
devices, including syringe, drop count, peristaltic and
volumetric types.  The analyzers directly measure both the flow
rate (flow of low viscosity fluids from pumps or controllers) and
pressure (occlusion pressure which an infusion device can apply
to a blocked tube) coming from the tested device and provides a
hard copy printout.  The user can then analyze the results. 

     The "Pacemaker Analyzers (PMA-1)" are designed to test all
types of external cardiac pacemakers, including invasive and non-invasive (trans-thoracic) types.  The
microprocessor-based analyzers enable measurement and display of
output voltage,                               - 2 -

output current, pulse width, pulse rate, A-V interval, wave
sensitivity inhibit rate, tack over rate, sensed and pulsed
refractory period and susceptibility to outside interference. 
These analyzers are not worn, carried or implanted in the body. 
They provide "quick, simplified pacemaker testing," and replace
the following test devices necessary for most pacemaker checkout
procedures:  an oscilloscope; refractory period delay circuit;
ECG simulator; period counter; test load; and frequency
generator. 

     The infusion device analyzers were entered under subheading
9026.80.20, HTSUS, which provides for other electrical
instruments and appliances for measuring or checking the flow,
level, pressure or other variables of liquids or gases.  The
pacemaker analyzers were entered under subheading 9021.90.40,
HTSUS, which provides for pacemaker parts and accessories.  Both
analyzers were classified upon liquidation under subheading
9031.80.00, HTSUS, which provides for other measuring or checking
instruments, appliances and machines, not specified or included
elsewhere in chapter 90, HTSUS.

ISSUE:

     Whether the infusion device analyzers and pacemaker
analyzers are classifiable as other measuring or checking
instruments, appliances and machines, not specified or included
elsewhere in chapter 90, HTSUS, under subheading 9031.80.00,
HTSUS.

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 (ENs) constitute the official interpretation of
the Harmonized System.  While not legally binding, and therefore
not dispositive, 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.  See
T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

     Heading 9031, HTSUS, provides for "[m]easuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter
(emphasis added)."  Accordingly, if the analyzers are
classifiable in another chapter 90 heading, they cannot be
classified under heading 9031, HTSUS.
                              - 3 -

     The protestant contends that the infusion device analyzers
are classifiable under heading 9026, HTSUS, which provides for
electrical instruments and appliances for measuring or checking
the flow, level, pressure or other variables of liquids or gases. 
EN 90.26, pg. 1511, states that heading 9026, HTSUS, covers
flowmeters which "indicate the rate of flow (in volume or weight
per unit of time) and are used for measurement of flow both
through open channels (rivers, waterways, etc.) and through
closed conduits (piping, etc.)."  EN 90.26, pg. 1512, further
states that the heading covers pressure gauges which "indicate
the pressure of a liquid or gas in a closed space."

     The infusion device analyzers are flow and pressure
measuring devices which check the accuracy of a wide variety of
infusion devices.  They directly measure both the flow rate and
pressure coming from the tested device ("closed conduit" or
"space") for the purpose of determining flow and pressure (rather
than, for example, determining leakage or structural integrity,
which may not be covered by heading 9026, HTSUS).   Accordingly,
the infusion device analyzers are classifiable under heading
9026, HTSUS, specifically under subheading 9026.80.20, HTSUS,
which provides for other electrical instruments for measuring or
checking the flow or pressure of liquids or gases.  See NY
859997, issued to the protestant on February 13, 1991 (wherein
the "IDA-1" infusion device analyzers were classified under
subheading 9026.80.20, HTSUS).

     The protestant contends that the pacemaker analyzers are
classifiable under subheading 9021.90.40, HTSUS, which provides
for pacemaker parts and accessories.  Note 2(a) to chapter 90,
HTSUS, provides that "[p]arts 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."  Thus, if the
pacemaker analyzers are "goods included" in a chapter 90 heading,
they cannot be classified as parts under heading 9026, HTSUS,
even if they are considered to be parts or accessories of
pacemakers (which they are not).  See HQ 954304, dated June 28,
1993 (concerning the application of note 2(a) to chapter 90,
HTSUS, to other articles claimed to be parts of pacemakers).

     Heading 9030, HTSUS, provides for instruments and apparatus
for measuring or checking electrical quantities.  The pacemaker
analyzers are designed to determine whether a pacemaker is
functioning properly by analyzing a variety of electrical and
non-electrical parameters, including output voltage,  pulse rate,
height and width of the electrical signal, wave sensitivity and
susceptibility to outside interference.  Because the analyzers
measure both electrical and non-electrical quantities (i.e.,
pulse rate), they cannot be classified under heading 9030, HTSUS. 
                              - 4 -

     EN 90.31, pg. 1529, provides that heading 9031, HTSUS,
"covers measuring or checking instruments, appliances and
machines, whether or not optical.  It should, however, be noted
that this group does not include any instruments, apparatus,
etc., falling in headings 90.01 to 90.12 or 90.15 to 90.30 . . .
."  The pacemaker analyzers are designed to measure various
electrical and non-electrical features of a pacemaker, and are
not described by headings 9001 to 9012, HTSUS, or 9015 to 9030,
HTSUS.  Accordingly, the  analyzers are classifiable under
heading 9031, HTSUS, specifically under subheading 9031.80.00,
HTSUS, which provides for other measuring instruments, not
specified or included elsewhere in chapter 90, HTSUS.

HOLDING:

     The "Infusion Device Analyzers" are classifiable under
subheading 9026.80.20, HTSUS, while the "Pacemaker Analyzers" are
classifiable under subheading 9031.80.00, HTSUS.

     The protest should be GRANTED with regard to the "Infusion
Device Analyzers," but DENIED with regard to the "Pacemaker
Analyzers."  In accordance with section 3A(11)(b) of Customs
Directive 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, this decision, together with the Customs Form
19, should be mailed by your office to the protestant no later
than 60 days from the date of this letter.  Any reliquidation of
the entry in accordance with the decision must be accomplished
prior to the mailing of 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 the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.

                         Sincerely,




                         John Durant, Director
                         Tariff Classification Appeals Division