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HQ 965194




JUNE 14, 2002

CLA-2 RR:CR:GC 965194 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.90.90

Port Director of Customs
111 West Huron Street
Buffalo, NY 14202

RE: Protest 0901-01-100060; EpiLight Treatment Head

Dear Port Director:

This is our decision on Protest 0901-01-100060, filed by the broker representing Sigmacon Medical Products Corp., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the EpiLight Treatment Head. A brochure and other descriptive literature are included as background materials. The entry was liquidated on October 27, 2000, and this protest timely filed on January 18, 2001.

FACTS:

A commercial invoice lists six (6) EpiLight Treatment Heads, each with a different serial number. The Customs Form 7501 covering consumption entry 112-***8394-1, merely lists “medical parts.” The Customs Form 6445 alternatively describes the goods as “EpiLight Treatment Head” and “EpiLight Hair Removal System.” In support of the protest covering this entry, the protestant’s representative describes parts and accessories for medical devices utilizing proprietary intense pulsed light and laser technologies. Excerpting from a Company Profile, these devices or systems are said to be used in a variety of surgical and medical applications, including the non-invasive treatment of leg veins and other vascular lesions, hair removal, skin and photorejuvenation, as well as dental, ENT, OB/GYN, and neurosurg[ical] procedures. The targeted end use service application in this case appears to be hair removal.

The merchandise was entered under subheading 9018.90.75, HTSUS, as other electro-medical instruments and appliances and parts and accessories thereof. You contend that protestant has not demonstrated that the good is used in professional practice either to make a diagnosis, to prevent or treat an illness or to operate, etc. and, therefore, is not an electro-medical instrument or appliance. You liquidated the entry under subheading 9018.90.90, HTSUS, as other parts and accessories of lasers, other than laser diodes.

ISSUE:

Whether the protestant has perfected a claim under heading 9018, HTSUS, as parts and accessories of electro-medical instruments and appliances.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Protests against decisions of the appropriate Customs officers must be in conformity with applicable statutory and regulatory requirements. Under 19 U.S.C. 1514(c)(1), a protest of a decision under subsection (a) of section 1514 must set forth distinctly and specifically each decision as to which protest is made. See United States v. E.H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945), United States v. Parksmith Corp., 514 F. 2d 1052, 62 CCPA 76 (1975), and related cases. In addition, section 174.13(a)(6) of the Customs Regulations (19 CFR 174.13(a)(6)), requires that a protest set forth the nature of, and justification for, the objection distinctly and specifically with respect to each decision.

The scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. Customs will consider all relevant allegations that are supported by competent evidence. In acting on a protest, however, Customs lacks the legal authority to assume facts and arguments that are not presented and, therefore, not in the official record. In this case, protest is properly made against your decision to classify the goods in subheading 9013.90.90, HTSUS. However, while the protestant
maintains that the EpiLight Treatment Head is classifiable in subheading 9018.90.75, HTSUS, he has provided no evidence to support this claim, nor is there other evidence of record from which we can independently determine the validity of the claim. A letter from the Canadian distributor describes parts for complete laser systems used for the applications attested to by the protestant, but references an entry number different from the one in this protest.

Relevant ENs on p. 1792, under (2) Lasers, state that a lasing medium (e.g., crystals, gases, liquids, chemical products), an electric or other energy source, and a resonant optical cavity (reflector system) which reflects and amplifies the light beams produced inside the lasing medium, are the basic elements combined in the laser head. The designation “EpiLight Treatment ‘Head’” suggests this good might be a laser, classifiable in subheading 9013.20.00, HTSUS. But, lacking any clear description of what this good actually is, what its constituent components are, or how it operates, this conclusion is merely speculative.

Based on protestant's failure to comply with the requirements of 19 CFR 174.13(a)(6), the protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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 to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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