HQ 954658
February 16, 1994
CLA-2 CO:R:C:M 954658 LTO
CATEGORY: Classification
TARIFF NO.: 9018.90.70
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945
RE: Protest No. 1001-93-101702; Special Light for ears; Probe
Tips; heading 8513; section XVI, note 1(m); chapter 90, note
1(h); EN 85.13; EN 90.18
Dear Sir:
The following is our decision regarding the request for
further review of Protest No. 1001-93-101702, filed by H.W. Ebert
Company on behalf of Hal Hen Company, Inc., which concerns the
classification of a special light for ears and probe tips under
the Harmonized Tariff Schedule of the United States (HTSUS). The
subject merchandise was entered on September 23, 1992, and the
entry was liquidated on March 12, 1993. The protest was timely
filed on March 25, 1993.
FACTS:
The article in question, identified on the invoice as the
P1124 Special Light, consists of a light and probe tips. The
submitted sample, the Slim-Line Earlite, consists of a small,
battery-operated flashlight and a clear, plastic probe tip, both
blister-packed onto a card. The flashlight is 5 1/4 inches long
and 1/2 inch in diameter. It has a pocket clip at the top which
also serves as the on/off switch. The probe tip has an overall
length of two inches. The top of the probe has a maximum
diameter of 1/2 inch and is shaped to fit into the recessed
flashlight head. The tip section of the probe is 1 3/8 inches
long and has a diameter of 3/16 of an inch. The sample did not
include extra probe tips, although it appears that the
importation in question includes additional tips. Two "AAA"
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batteries are included.
In a letter dated February 10, 1994, a representative of the
Hal-Hen Company advised this office that the product in question
is used "by hearing health care professionals, audiologists, ENT
(ear, nose and throat) physicians and hearing aid dispensers
. . . ." The Special Light is used to illuminate the inner ear
canal and diagnose if there are any problems or blockages, and to
place cotton in the proper position in the canal prior to making
a mold for a hearing aid.
The merchandise (light and probe tips) was entered under
subheading 9018.90.70 (now, subheading 9018.90.75), HTSUS. The
light was classified upon liquidation under subheading
8513.10.20, HTSUS, while the additional probe tips were
classified under subheading 8513.90.20, HTSUS.
The subheadings at issue are as follows:
8513 Portable electric lamps designed to
function by their own source of energy
(for example, dry batteries, storage
batteries, magnetos), other than
lighting equipment of heading 8512;
parts thereof:
Lamps:
8513.10.20 Flashlights (25%)
Parts:
8513.90.20 Of flashlights (25%)
* * * * * * * * * * * * *
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:
Other instruments and appliances and
accessories thereof:
Other:
Electro-medical instruments and
appliances and parts and
accessories thereof:
9018.90.70 Other (4.2%)
ISSUE:
Whether the Special Light is classifiable as other electro-
medical instruments and appliances under subheading 9018.90.70,
HTSUS, or as a flashlight under subheading 8513.10.20, HTSUS, and
parts thereof under subheading 8513.90.20, HTSUS.
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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 . . . ."
Note 1(m) to section XVI, HTSUS, states that chapters 84 and
85 do not cover articles of chapter 90. However, note 1(h) to
chapter 90 states that the chapter does not cover the portable
electric lamps of heading 8513, HTSUS. Thus, if the Special
Light is classifiable under heading 8513, HTSUS, it cannot be
classified under heading 9018, HTSUS.
The Harmonized Commodity Description and Coding System
Explanatory Note (EN) to heading 8513, HTSUS, pg. 1350-51, states
that the heading "covers portable electric lamps designed to
function by means of a self-contained source of electricity
(e.g., dry cell, accumulator or magneto)." However, the note
further states that "[s]pecialised medical inspection lamps
(e.g., for throat or ear inspection) are excluded (heading 90.18)
[emphasis in original]."
It is our opinion that the Special Light is a specialized
medical ear inspection lamp covered by heading 9018, HTSUS, and
therefore, excluded from heading 8513, HTSUS. The light in
question is used by hearing health care professionals,
audiologists, ENT physicians and hearing aid dispensers, to
examine the inner ear and to place cotton in the proper position
in the ear canal prior to making a mold for a hearing aid. While
it is not principally used by medical doctors, the notes
contemplate tools and instruments used by non-medical doctors,
such as dental mechanics. See EN 90.18, pg. 1491. Accordingly,
the article in question, which consists of a light and probe tip,
is classifiable under subheading 9018.90.70, HTSUS. If the
Special Light is imported with more than one probe tip, the
additional tips are also classifiable under this subheading as
parts or accessories.
HOLDING:
The Special Light and probe tips are classifiable under
subheading 9018.90.70, HTSUS.
The protest should be granted. 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
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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, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: NIS Jacques Preston