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HQ 967747





March 21, 2006

CLA-2 RR:CTF:TCM 967747ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 9402.90.0020; 9405.10.6020

Port Director
Bureau of Customs and Border Protection
1901 Crossbeam Drive
Charlotte, NC 28217

RE: Protest 1512-05-100011; Ceiling Mounted Equipment Platform Systems; Surgical Operating Room Lamps.

Dear Sir:

The following is our decision regarding the request for further review of Protest 1512-05-100011 against your decision which classified articles described as ceiling mounted equipment platforms and related parts in subheading 9033.00.00, Harmonized Tariff Schedule of the United States (HTSUS), which provides for parts and accessories for machines, appliances, instruments or apparatus of chapter 90. Although the merchandise was liquidated in the same HTSUS classification as it was entered, counsel filed this protest regarding the classification on February 9, 2005.

FACTS:

The entry under protest covered two types of goods. The first type of merchandise under consideration consists of ceiling mounted equipment platforms known as “booms” or “orbiters” which are intended to be used in hospital operating and recovery rooms, and intensive care environments. The second type of merchandise in the entry was surgical operating room lamps. When the orbiters were entered, they were classified in subheading 9033.00.00, HTSUS, which provides for “Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.” The operating room lamps were entered under subheading 9405.40.6000, HTSUS, which provides for “Lamps and lighting fittings Other electric lamps and lighting fittings: Other.” The goods were liquidated in those subheadings on November 12, 2004. On February 9, 2005, counsel for the importer filed a protest with Customs and Border Protection (CBP) in which they claim that the booms or orbiters should be classified in subheading 9402.90.0020, HTSUS, which provides for “Medical, surgical, dental or veterinary furniture (for example, operating tables, examination tables, hospital beds with mechanical fittings, dentists' chairs); barbers' chairs and similar chairs, having rotating as well as both reclining and elevating movements; parts of the foregoing articles: other: other,” or alternatively “as accessories to surgical apparatus in heading 9018 or 9019.” Counsel contends that the lamps should be classified in subheading 9018.90.60, HTSUS, which provides for “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-surgical instruments and appliances ; all the foregoing and parts and accessories thereof” or “in any other provision of heading 9018.”

These particular orbiter product systems are identified by the manufacturer as being modular systems that, in addition to possessing both gas and electric delivery capabilities, have been designed to incorporate accessory drawers, platforms and shelves that are specifically intended to accept a variety of monitoring devices, instruments and equipment used in the locations where the products have been installed. The different orbiter systems are marketed as “Intensive Care/Recovery” and “Surgery/Anaesthesia” modules, depending on where they will be installed.

The surgical operating room lights are intended to be used in operating rooms of hospitals. The lights are at the end of arms that allow them to be swiveled and focused where their light is needed.

The orbiter modules and lights are imported unassembled.

ISSUES:

Whether ceiling mounted booms or orbiters that incorporate platforms and shelving designed for hospital use are classifiable as medical furniture of heading 9402, HTSUS, or as accessories to medical instruments and apparatus of heading 9033, HTSUS?

Whether overhead surgical lamps designed for use in hospital surgical suites are classified as medical, surgical, dental or veterinary instruments or appliances or parts or accessories thereof of heading 9018, HTSUS, or as lamps of heading 9405, HTSUS?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS subheadings under consideration are as follows:

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:

Other:

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 and parts and accessories thereof.

9019 Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof:

9033.00.0000 Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.

9402 Medical, surgical, dental or veterinary furniture (for example, operating tables, examination tables, hospital beds with mechanical fittings, dentists' chairs); barbers' chairs and similar chairs, having rotating as well as both reclining and elevating movements; parts of the foregoing articles:

9402.90.00 Other

9402.90.0020 Other

9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included:

9405.10 Chandeliers and other electrical ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares: Of base metal:

Other

9405.10.6020 Other

Counsel contends that the booms or orbiters at issue should be classified in heading 9402, HTSUS, which provides for medical furniture because they are designed and sold as units with the shelving and platforms as integral component elements of the total module. The chapter notes to chapter 94 provide, in pertinent part, as follows:

2. The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground.

The following are, however, to be classified in the above-mentioned headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other:

(a) Cupboards, bookcases, other shelved furniture and unit furniture;

(b) Seats and beds.

The booms or orbiters are not designed to be placed on the floor or ground. Counsel is aware of this. However, he argues that in the modern hospital arena “the ceiling is the new floor” and he has provided literature to support this contention. Through employment of ceiling mounted devices, the actual floor can be kept clear of clutter and movement can be facilitated.

The products are manufactured so that they readily incorporate shelving and receptacles designed to accept and hold monitoring devices and other types of equipment that are increasingly common in hospital environments. The products certainly can be configured to contain a variety of instruments and paraphernalia that are both helpful and essential in a hospital operating or emergency room environment. We have reviewed the descriptive informational materials prepared by the manufacturer and provided by counsel, and have determined that the shelving associated with these products is an integral component of the orbiter and that the gas and electrical systems that are contained within the orbiter, while important, do not provide these products with their essential character – that of being a device upon which monitors and other appliances and equipment can be placed for ready use and reference during surgical or other medical activities.

CBP has previously considered orbital booms which did not contain shelving and platform components and determined that they are not medical furniture, but rather, were classified as parts or accessories to the medical or surgical instruments that are attached to the orbiter.

However, after considering the configuration, design and, most particularly, the marketing and use documentation for the instant products, we
can distinguish these products from those previously considered. While the gas and electric delivery component of the products are important, it is the capability of these particular products to hold the equipment and other materials in a readily accessible location on the shelving and in the other receptacles that are designed as integral components of the products that distinguishes these products from other orbiters previously classified by CBP. These products are described by the chapter note, in that they are designed to be hung and they do incorporate shelves and platforms as integral components. Accordingly, we have determined that the instant products are furniture that is used in a medical environment and are classified in heading 9402, HTSUS.

The surgical lamps under consideration are designed to be incorporated into the operating room environment. Although counsel contends that they should be classified as surgical equipment in heading 9018, HTSUS, CBP has previously considered such lamps. In HQ 967159, dated November 17, 2004, CBP determined that they are classified in heading 9405, HTSUS. In that ruling, CBP stated:

Lamps which "are specially designed for diagnostic, probing, irradiation, etc. purposes" are included in heading 9018, HTSUS. However, the instant HSLVS parts can not be said to have been designed for a lamp used in probing or irradiation. Lamps so designed are those that are part of an instrument which probes the body, such as an endoscope, which enables the clinician to see the internal organ and take a cell sample so as to diagnose a disease. Lamps used for irradiation are those which employ radiation to reveal, most commonly, skin diseases. Instead, you argue that the HSLVS is specially designed for diagnostic purposes. The HSLVS has certain temperature and lighting features which will not harm the patient during a surgical procedure. It also has ports for the attachment of visualization equipment during certain surgical procedures and a handle to position it during surgery. These facts, while important, do not lead us to believe that the lamp function is specialized for the diagnosis of disease. Precision overhead room lighting is necessary for the surgeon to do his or her job. But the instant merchandise is not used in direct contact or even in close proximity with the patient for the sole benefit of diagnosis of disease. While it is specialized lighting to be sure, it is more akin to the explicitly excluded spotlight of heading 9405, HTSUS, than it is to the included lamps attached to endoscopes and the like, that are used in intimate contact with the patient.

The surgical lighting under consideration are similar in design and function to those described in HQ 967159 and are to be classified similarly.

HOLDING:

Orbiters or booms containing shelving and equipment platforms designed for use in medical and surgical environments are classified in subheading 9402.90.0020, HTSUS, which provides for: “[m]edical, surgical, dental or veterinary furniture (for example, operating tables, examination tables, hospital beds with mechanical fittings, dentists' chairs); barbers' chairs and similar chairs, having rotating as well as both reclining and elevating movements; parts of the foregoing articles: [o]ther, [o]ther.” The 2003 duty rate was: Free.

The surgical lamps when imported in an unassembled condition to create a complete lamp will be classified in subheading 9405.10.6020, HTSUS, which provides for: “lamps and lighting fittingschandeliers and other electric ceiling or wall lighting fittingsof base metal: other [than of brass], other.” The 2003 rate of duty was 7.6 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

The protest should be GRANTED in part and DENIED in part in accordance with the above decision. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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