Before Mayer, Chief Judge, Newman, and Lourie, Circuit Judges. Opinion for the court filed by Circuit Judge Lourie. Dissenting opinion filed by Circuit Judge Newman.
The opinion of the court was delivered by: Lourie, Circuit Judge.
Appealed from: United States Court of International Trade Chief Judge Gregory W. Carman
Baxter Healthcare appeals from the February 24, 1998 decision of the United States Court of International Trade denying its motion for summary judgment and granting the United States' cross-motion for summary judgment that the United States Customs Service (Customs) correctly classified its imported Oxyphan(TM) product under subheading 5404.10.80, Harmonized Tariff Schedule of the United States, 19 U.S.C. § 1202 (1994) (HTSUS). See Baxter Healthcare Corp. of Puerto Rico v. United States, 998 F. Supp. 1133 (Ct. Int'l Trade 1998). Because we conclude that Customs correctly classified the merchandise, we affirm.
Between 1992 and 1994, Baxter bought and imported a product known as Oxyphan(TM) in ten-kilometer spool units from Akzo Nobel Faser AG (Akzo) in Germany. Oxyphan(TM) is a 0.4 mm-diameter polypropylene filament with a linear density greater than 67 decitex. However, it has characteristics unique among filaments in that it is hollow, it has a capillary-sized diameter, its microporous walls are gas-permeable, it has low tensile strength, and it does not undergo a drawing step during manufacturing. Akzo specifically designed Oxyphan(TM) with these characteristics in mind for use as the gas-exchanging membrane of an oxygenator. *fn1 It has no other known use. Baxter uses Oxyphan(TM) to make its Univox(TM) membrane oxygenator product. To make an oxygenator, Baxter groups seven or eight lengths of Oxyphan(TM), ties them together, wraps them around a cylindrical steel bellow twenty-two times, and encloses the assembly in a polycarbonate manifold with two sets of inlet and outlet ports. Each spool of Oxyphan(TM) membrane contains enough membrane to make approximately four oxygenators, but the exact length of membrane required per oxygenator is not fixed. During operation, oxygen-deficient blood is pumped around the Oxyphan(TM) membranes while oxygen is simultaneously pumped through the membranes. Because the membrane is gas-permeable, oxygen diffuses out of the membrane hollows into the blood, and carbon dioxide diffuses from the blood into the membrane hollows and out an exit port.
At issue in this case is Oxyphan(TM)'s proper classification in the HTSUS. The parties dispute which of the following headings and subheadings constitutes the proper classification for Oxyphan(TM):
5404 Synthetic monofilament of 67 decitex or more and of which no cross-sectional dimension exceeds 1 mm; strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm:
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:
9018.90 Other instruments and appliances and parts and accessories thereof:
Electro-medical instruments and appliances and parts and accessories thereof:
9018.90.60 Electro-surgical instruments and appliances, other than extracorporeal shock wave lithotripters; all the foregoing ...