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HQ 963652




February 27, 2001

CLA-2 CO:RR:CR:GC 963652 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.20

Mr. Cecil E. Martin, III
McGuire, Woods, Battle & Boothe, LLP
7 Saint Paul Street
Suite 1000
Baltimore, MD 21202-1626

RE: Reconsideration of NY E87153; “medical inspection/examination

Dear Mr. Martin:

This is in reference to your letters, dated September 1 and October 19, 1999, to the National Commodity Specialist Division, New York, as well as your supplemental submission with attachments dated December 21, 2000, requesting reconsideration of New York Ruling Letter (NY) E87153, issued to you on July 9, 1999, which concerned the classification of what you alternatively refer to as a “medical inspection light” and “medical examination light” under the Harmonized Tariff Schedule of the United States (HTSUS). NY E87153 classified the “medical inspection light” under subheading 8513.10.20, HTSUS, as a flashlight. A sample was provided for our consideration. We have reviewed NY E87153 and believe that the classification set forth is correct. We regret the delay in responding.

FACTS:

The item at issue is a plastic, portable, battery-operated lighting device that is cylindrical in shape. It measures approximately 4 3/4 inches in length and 1.2 inches in diameter. The lamp has a built-in metal clip, similar to those on ballpoint pens for clipping the article to a shirt pocket, which measures 1 1/2 inches in length and 1/8 inch in width. The light is activated by pressing on the metal clip.

You aver that the “medical inspection/examination light” is classifiable under subheading 9018.19.40, HTSUS, which provides for apparatus for functional exploratory examination, or, alternatively, under subheading 9018.90.80, HTSUS, which provides for other medical instruments and appliances. In support of these contentions, you aver that the articles are so classifiable because of their better quality and specialized design. You state that the articles must meet strict light spot tests (deviation of light spot shall not be larger than 5 degrees), have controlled light intensity requirements (light intensity shall be greater/larger than 11 FC), and the articles cost more than three times as much as a penlight not manufactured for medical examinations. Finally, you state that “the medical examination lights at issue are used to gauge the sensitivity of the pupil to light, detect foreign bodies in the eyes, and for oral cavity and ear inspection and examination.”

ISSUE:

Whether the “medical inspection/examination light” is classifiable as a flashlight under subheading 8513.10.20, HTSUS, or as other instruments and appliances used in medical sciences, apparatus for functional exploratory examination under subheading 9018.19.40, HTSUS, or as other medical instruments and appliances under subheading 9018.90.80, 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 HTSUS headings and subheadings under consideration 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.
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: Electro-diagnostic apparatus (including apparatus for functional exploratory examination or for checking physiological parameters); parts and accessories thereof:
Other:
9018.19.40 Apparatus for functional exploratory examination, and part and accessories thereof: 9018.90.80 Other instruments and appliances and parts and accessories thereof: Other:
9018.90.80 Other.

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 medical inspection/examination light is classifiable under heading 8513, HTSUS, it cannot be classified under heading 9018, HTSUS.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The EN to heading 8513, HTSUS, provides, in pertinent part:

1. - This heading covers portable electric lamps designed to function by means of a selfcontained source of electricity (e.g., dry cell, accumulator or magneto).

They comprise two elements (i.e., the lamp proper and the source of electricity) which are usually mounted and directly connected together, often in a single case. In some types, however, these elements are separate and are connected by wires.

The term “portable lamps” refers only to those lamps (i.e., both the lamp and its electricity supply) which are designed for use when carried in the hand or on the person. They usually have a handle or a fastening device and may be recognised by their particular shapes and their light weight.

The lamps of this heading include:

(1) Pocket lamps. Some (“dynamo lamps”) are operated by a magneto, hand driven by means of a springloaded lever. (5) Examination lamps for general use, fixed to a headband (which usually consists of a curved strip of metal). Such lamps are classified here only if they have their own source of current (dry battery in user’s pocket, for example). The lamps of this heading are used by doctors, watchmakers, jewellers, etc. Specialised medical inspection lamps (e.g., for throat or ear inspection) are excluded (heading 90.18).

Customs has long held that “portability” is an essential characteristic of “flashlights.” The term “flashlight” has been judicially determined to encompass small, batteryoperated, portable electric lights. Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, aff’d., 642 F.2d 435 (1981). Flashlights have been defined as small, battery operated, portable electric lights normally held in the hand by the housing. The primary function of a flashlight is to project a beam of light. See Headquarters Ruling Letter (HQ) 951855, dated July 24, 1993; HQ 084852, dated March 28, 1990; HQ 953262, dated July 26, 1993. The EN to heading 8513, HTSUS (above), lists portability as a required characteristic of articles classified as flashlights. However, the EN to heading 8513 further states that "[s]pecialised medical inspection lamps (e.g., for throat or ear inspection) are excluded (heading 90.18)."

Customs has previously considered whether lighting devices are classifiable under heading 9018, HTSUS. In Headquarters Ruling Letter (HQ) 961705, dated August 25, 1999, we considered whether, among other things, a slit lamp (“microscopes that examine the cornea, lens and clear fluids in layer-by-layer detail, and can also be used to measure the extent of damage caused by glaucoma”), among other things, was classifiable under heading 9018, HTSUS. In that ruling, we made the following interpretation of the provisions of heading 9018: A diagnosis is the identification of a disease by careful investigation of its symptoms and history. 1 Compact Edition of the Oxford English Dictionary 714 (1987). Diagnostic in the medical sense means relating or aiding in diagnosis. Stedman’s Medical Dictionary 428 (1990).

Functional in the medical sense means that which relates to the normal physiological activity or vital functioning, of an organ, but not the structure, or anatomy, of that organ. See Dorland’s Illustrated Medical Dictionary 667 (1994). The instant slit lamp microscopes, tonometers, retinal cameras, and ophthalmometers permit the operator to observe and record the structural effects of a disease or disorder of the eye, but not the activity going on in the eye. The goods do not meet the definition of functional.

Exploratory in the medical sense means that which relates to an active examination, usually involving endoscopy or a surgical procedure, to ascertain conditions present as an aid in diagnosis. Stedman’s Medical Dictionary 550 (1990). While the instant slit lamp microscopes, tonometers, retinal cameras, and ophthalmometers certainly aid in describing the condition of the eye, they do so through visual examination from outside the body cavity, that is, without invasive procedures. We do not believe the goods are exploratory in nature.

We find that the inspection/examination lights are neither diagnostic nor functional nor exploratory in the medical sense. Although the beam of light shone into the eye causes the pupil to react, i.e., triggers the light reflex, we are not persuaded that the light enables the user to better diagnose or explore this reflex.

In HQ 952559, dated March 3, 1993, a plastic, battery operated, portable electric lamp, with a built-in clip designed to hold a wood tongue depressor for oral examinations, was classified in subheading 8513.10.20, HTSUS, as a flashlight. In that ruling we stated that:
the clip lamp falls within the above-cited portion of EN 85.13 in that the main function is the provision of light. Thus, it is precluded from classification under Chapter 90, HTSUS.

You present the alternative argument that the article is classifiable under subheading 9018.90.80, HTSUS, which provides for other medical instruments and appliances. As previously indicated, General Note 1(h) to Chapter 90 provides that Chapter 90 does not cover portable electric lamps of heading No. 85.13. The ENs to heading 9018 provide that the articles classifiable therein “are classified in this heading only when clearly identifiable as being for medical or surgical use [emphasis in original]. The devices at issue are hand held, portable, have a self-contained power source and emit a beam of light; they are by definition for tariff purposes flashlights. We find that they do not comprise other instruments used in medical or other sciences as contemplated by subheading 9018.90.80, HTSUS. Further, you have not provided evidence that clearly identifies them as for medical or surgical uses.

You rely on HQ 954658, dated February 16, 1994, to support your contention that the “medical inspection/examination light” is classifiable under heading 9018. In that ruling the “P1124 Special Light, 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,” was classified under heading 9018, HTSUS. In so holding, we determined that the article was a specialized medical ear inspection lamp, used to diagnose ear ailments and to make forms for hearing aids.

An article is to be classified according to its condition as imported. See, XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). In its condition as imported, the “medical inspection/examination light” is a hand held, portable article with a self-contained power source that projects a beam of light. It is our opinion that the light in question is not a specialized medical inspection lamp covered by heading 9018, HTSUS. Although the light in question is used by health care professionals to examine the light reflex of pupils, the light does not perform any diagnostic or evaluative function. Therefore, the article cannot be classified under heading 9018, HTSUS.

HOLDING:

The clip lamps are classifiable under subheading 8513.10.20, HTSUS, which provides for portable electric lamps designed to function by their own source of energy . . . flashlights.

EFFECT ON OTHER RULINGS:

NY E87153 is affirmed.

Sincerely,

John Durant, Director

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