OT:RR:CTF:EMAIN H334777 MFT
Ms. Josie Maria Gonzalez DSV
Air & Sea, Inc.
21112 72nd Avenue South
Kent, WA 98032
Re: Revocation of NY N308716; Classification of Insight Infrared Video Goggles from China
Dear Ms. Gonzalez:
This letter pertains to New York Ruling Letter (NY) N308716, issued to you on behalf of
Vestibular First, LLC, on January 28, 2020. That decision was in response to Vestibular First’s
request for a ruling on the tariff classification of certain infrared video goggles from China. After
review, we find NY N308716 to be in error and are revoking it for the reasons set forth below.
Notice of the proposed action was published on October 30, 2024, in the Customs
Bulletin, pursuant to Section 625(c)(1) of the Tariff Act of 1930 (codified in 19 U.S.C §
1625(c)(1)), as amended by Section 623 of Title VI (Customs Modernization) of the North
American Free Trade Agreement Implementation Act (Pub. L. No. 103-182, 107 Stat. 2057, 2186
(1993)). One comment was received in response to this notice.
FACTS:
NY N308716 describes the subject merchandise as follows:
The Insight Infrared Video Goggles resemble a [v]irtual [r]eality headset worn by
the patient. [The goggles] consist[] of a plastic enclosure (body), which goes around
the eyes to block out all light, attached with a front panel (cover) and a silicone
strap with two strap adapters and two adjusters. The front panel contains two
cameras, two switches, a cable assembly, and other components. Each camera has
two infrared LEDs and one visible light LED embedded on the chip and can detect
both visible and infrared light, which it then captures on the sensor. The visible light
LED is only turned on when the switch is enabled on the front of the goggles.
The goggles do not have their own power source or software[] and rely on the connected
computer to provide these.
Once the device is connected to an off-the-shelf video viewing software applied
with a specific template on a desktop or laptop, [a] clinician can use the infrared
cameras to view the eye movements of the patient. The images can be recorded,
displayed, and stored on the software. The videos are used by a trained medical
professional, such as audiologists, ENT doctors, physicians, etc., to assist in
diagnosing vestibular disorders.1
After reviewing the case file for NY N308716, we further note that you explained to U.S.
Customs and Border Protection (CBP) the following on January 14, 2020, in a written response
to CBP’s inquiries regarding the subject merchandise:
The device [i.e., the infrared video goggles] utilizes infrared and visible light
independently to help provide differential diagnosis to a trained clinician. Some
abnormal eye movements only occur when there is no visible light present[, and]
some abnormal eye movements are suppressed with visible light. The switch on the
front of the goggles is controlled by the clinician during their exam to help
determine how the eye movements are affected in different lighting scenarios.
NY N308716 classified the subject merchandise under subheading 9018.90.20 of the
Harmonized Tariff Schedule of the United States (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: Other instruments and appliances and parts and accessories thereof: Optical instruments
and appliances and parts and accessories thereof: Other.”
NY N308716 further held that the subject merchandise was subject to the additional 25
percent ad valorem rate of duty under subheading 9903.88.01, HTSUS, applicable to products of
China and described in statistical reporting number 9018.90.2000, HTSUS Annotated
(HTSUSA).
ISSUES:
Whether the subject infrared video goggles are properly classified as “television
cameras” under heading 8525, HTSUS, or as “instruments used in medical sciences” under
heading 9018, HTSUS.
1
NY N308716 (Jan. 28, 2020), https://rulings.cbp.gov/ruling/N308716.
2
Whether the subject infrared video goggles are properly classified under subheading
9018.19, HTSUS, as “other electro-diagnostic apparatus” or under subheading 9018.90, HTSUS,
as “other instruments and appliances.”
LAW AND ANALYSIS:
Classification under the HTSUS is in accordance with the General Rules of Interpretation
(GRIs). GRI 1 provides that the classification of goods will be determined 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 2 through 6 will then be applied in order. GRI 6
provides that for legal purposes, the classification of goods in the subheadings of a heading shall
be determined according to the terms of those subheadings and any related subheading notes and,
mutatis mutandis, to GRIs 1 through 5, on the understanding that only subheadings at the same
level are comparable. For the purposes of GRI 6, the relative section and chapter notes also
apply, unless the context otherwise requires.
The 2024 HTSUS headings and subheadings under consideration are as follows:
8525 Transmission apparatus for radio-broadcasting or television, whether
or not incorporating reception apparatus or sound recording or
reproducing apparatus; television cameras, digital cameras and video
camera recorders:
*****
9018 Instruments and appliances used in medical, surgical, dental or veterinary
sciences, including scintigraphic apparatus, other electromedical 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:
9018.19 Other:
*****
9018.90 Other instruments and appliances and parts and accessories
thereof.
The first issue we must address is whether the subject merchandise is properly classified
under heading 8525, HTSUS, or alternatively, heading 9018, HTSUS. GRI 1 requires that we
look to the terms of both headings and their relative chapter or section notes.
Note 1(m) to Section XVI, HTSUS, provides that articles of Chapter 90 are not covered
under Section XVI. In turn, Note 1(h) to Chapter 90, HTSUS, states that Chapter 90 does not
cover, inter alia, “television cameras, digital cameras and video camera recorders” of heading
3
8525, HTSUS. Therefore, if the subject infrared video goggles constitute “television cameras” of
heading 8525, HTSUS, they cannot be classified under Chapter 90, which includes heading 9018,
HTSUS.
In understanding the language of the HTSUS, the Harmonized Commodity Description
and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive
or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the
official interpretation of the Harmonized System at the international level.
The EN to heading 8525, HTSUS, gives some guidance as to the scope of the term
“television cameras.” In particular, the EN provides the following, in pertinent part:
(B) TELEVISION CAMERAS, DIGITAL CAMERAS AND VIDEO CAMERA
RECORDERS
This group covers cameras that capture images and convert them into an electronic
signal that is:
(1) transmitted as a video image to a location outside the camera for viewing or
remote recording (i.e., television cameras); [emphasis added] [. . .]
These cameras do not have any inbuilt capability of recording images. Some of these
cameras may also be used with automatic data processing machines (e.g., webcams).
Certainly, when weighed in isolation of other components, the two cameras in the front
panel appear to be “television cameras” of heading 8525, HTSUS. The two cameras capture
images; convert those images into an electronic signal; and transmit that signal as a video image
to a location outside the camera (i.e., a desktop or laptop). A clinician can then view the video
images from the outside using “off-the-shelf video viewing software,” or record the videos
remotely on the software (i.e., not on the cameras themselves). Finally, the cameras must also be
used with automatic data processing machines since “[t]he goggles do not have their own power
source or software[] and rely on the connected computer to provide these.” Nonetheless, in
considering the subject infrared video goggles in their entirety, we find that they fall outside of
the terms of heading 8525, HTSUS.
The subject infrared video goggles exhibit characteristics and functions beyond those
found in “television cameras” of heading 8525, HTSUS. The form factor of the goggles is the
first characteristic that distinguishes the subject merchandise from television cameras. Here, the
goggles “resemble a [v]irtual [r]eality headset” and are distinctly “worn by the patient” as
opposed to being, for example, mounted on a tripod (e.g., broadcasting cameras) or fitted above a
computer screen (e.g., webcams). The goggles also have a plastic enclosure “which goes around
the eyes to block out all light,” a characteristic that one may consider, at best, atypical of
television cameras. The two cameras being pointed towards the patient’s eyes enables the
clinician to view the patient’s eye movements in the first place, thereby signifying the subject
merchandise’s core function (i.e., “to assist in diagnosing vestibular disorders”). Notably, the
function of the infrared and visible light LEDs, as elucidated by your response, is not merely to
provide a light source on the camera’s subject, but to observe the “abnormal eye movements
4
[which] only occur when there is no visible light present as well as some abnormal eye
movements [which] are suppressed with visible light.” Taking the entirety of these
characteristics and functions together, the subject infrared video goggles are more than mere
“television cameras” of heading 8525, HTSUS, and must be classified elsewhere.
The EN to heading 9018, HTSUS, suggests that the “heading covers a very wide range of
instruments and appliances which, in the vast majority of cases, are used only in professional
practice (e.g., by doctors, surgeons, dentists, veterinary surgeons, midwives), either to make a
diagnosis, to prevent or treat an illness or to operate, etc.”2 Additionally:
The instruments and appliances classified here may be equipped with optical
devices; they may also make use of electricity, either as motive power or for
transmission, or as a preventive, curative or diagnostic agent. [. . .]
(V) OTHER ELECTRO-MEDICAL APPARATUS
This heading also covers electro-medical apparatus for preventive, curative or
diagnostic purposes, other than X-ray, etc., apparatus of heading 90.22. This group
includes:
(1) Electro-diagnostic apparatus, which include: [. . .]
(x) Diagnostic apparatus incorporating or operating in conjunction with an
automatic data processing machine for processing and visuali[z]ing
clinical data, etc.
Neither the HTSUS nor the ENs provide a definition for “electro-diagnostic.” In the
absence of a definition of a term in the HTSUS or ENs, the term’s correct meaning is its common
and commercial meaning.3 Common and commercial meaning may be determined by consulting
dictionaries, lexicons, scientific authorities, and other reliable sources.4 In examining subheading
9018.19, HTSUS, we previously consulted dictionary definitions for “diagnostic” and “diagnosis”:
The term “diagnostic” is defined in Webster’s II New Riverside University
Dictionary 372 (1988) as “1. Of, relating to, or used in a diagnosis. 2. Serving to
identify a disease.” The same term is defined in Dorland’s Illustrated Medical
Dictionary 458 (28th ed.) as “pertaining to or subserving diagnosis.” The term
2
We note that the EN to heading 9018, HTSUS, further suggests that the heading does not cover “Spectacles,
goggles and the like, corrective, protective or other” of heading 9004, HTSUS. The subject infrared video goggles do
not fall under heading 9004, HTSUS. As the EN to heading 9004, HTSUS, states, “goggles” of that heading “usually
compris[e] a frame or support with lenses or shields of glass or other material[] for use in front of the eyes,” and are
generally used to correct vision defects; protect the eyes from contaminants like dust, smoke, and gas, or from
dazzle; and for viewing three-dimensional pictures. In contrast, the subject infrared video goggles are not primarily
designed for aiding, enhancing, or protecting the wearer’s vision. Nor do the subject infrared video goggles contain
special lenses for the wearer to see through the goggles. The goggles are designed for the clinician to make
observations, not for the patient to observe the surroundings through the goggles.
3
See Nippon Kogaku, Inc. v. United States, 69 C.C.P.A. 89, 673 F.2d 380 (1982). 4
See C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268 (1982).
5
“diagnosis” is defined in Webster’s as “1. Med. The act or process of identifying or
determining the nature of a disease by way of examination.” The term “diagnosis”
is defined in Dorland’s as the determination of the nature of a case of disease. 2.
the art of distinguishing one disease from another.”4
The full term “electrodiagnosis” also appears in Stedman’s Medical Dictionary:
282810 electrodiagnosis
(ē-lek′trō-dī′ag-nō′sis)
1. The use of electronic devices for diagnostic purposes.
2. By convention, the studies performed in the EMG [electromyography] laboratory,
i.e., nerve conduction studies and needle electrode examination (EMG proper).
SYN: electroneurography[.]5
We find that the subject infrared video goggles constitute “instruments used in medical
sciences” under heading 9018, HTSUS, and specifically an “electro-diagnostic apparatus” of
subheading 9018.19, HTSUS. The facts show that the goggles are designed to be used “by a
trained medical professional,” including “audiologists, ENT doctors, [and] physicians.” Further,
the subject merchandise is used “to make a diagnosis,” specifically for vestibular disorders. As
the goggles “do not have their own power source,” they “make use of electricity” in part by
pulling electric power from a connected computer, and importantly, the electricity is then used to
provide an image of the patient’s eyes under either infrared or visible light for a clinician to
examine. The connection to a computer and the use of the software to generate an image and
information useful for making diagnostic assessments demonstrate how the subject merchandise
interacts with and “operat[es] in conjunction with an automatic data processing machine for
processing and visuali[z]ing clinical data,” particularly the image of abnormal eye movements.
The goggles, simply put, are “electronic devices” used “for diagnostic purposes.” Considering
these functions, the subject infrared video goggles meet the terms of subheading 9018.19,
HTSUS, as “instruments used in medical sciences” and, more specifically, “other
electrodiagnostic apparatus.”
We now turn to the conclusion reached in NY N308716, which classified the subject
merchandise under subheading 9018.90, HTSUS. As GRI 6 states, the classification of goods at
the subheading level must be “on the understanding that only subheadings at the same level are
comparable.” In this instance, the terms “Electro-diagnostic apparatus (including apparatus for
functional exploratory examination or for checking physiological parameters); parts and
accessories thereof” found in subheading 9018.19, HTSUS, and “Other instruments and
appliances and parts and accessories thereof” of subheading 9018.90, HTSUS, are at the same
indentation level. These provisions are directly comparable. The latter subheading’s provision for
4
Headquarters Ruling Letter (HQ) 961998 (May 7, 1999) (blood pressure monitor).
5
See electrodiagnosis, STEDMAN’S MEDICAL DICTIONARY, Westlaw 282810 (database updated Nov. 2014).
6
“other instruments” indicates that the subject merchandise can be classified therein only if it
cannot be classified in the preceding provisions. Because, as discussed above, we found the
subject goggles to be classifiable as an “electro-diagnostic apparatus” under subheading 9018.19,
HTSUS, they cannot be classified under the “other” provision of subheading 9018.90, HTSUS.
CBP received one comment in response to our solicitation of comments. The commenter
disagrees with CBP’s interpretation of the term “electro-diagnostic” found in subheading
9018.19, HTSUS, and claims that the subject video goggles are properly classified under
subheading 9018.90, HTSUS.
First, the commenter argues that CBP’s interpretation of “electro-diagnostic” is overly
broad. The commenter asserts that “the medical community defines electrodiagnosis in a more
limited scope.” In particular, the commenter cites a definition from an online clinical reference
known as “eMedicine,” which provides as follows:
Electrodiagnosis is the field of study that, by employing the science of
electrophysiology, uses electrical technology to study human neurophysiology.
Neurodiagnostics (NDS), electromyography (EMG), and evoked potentials (EPs)
are aspects of electrodiagnosis. Information needed to answer any questions
regarding nerve injury, muscle injury, muscle disease, localization, and prognosis
can be obtained through electrodiagnostic testing. This information should help to
focus treatment on the exact site of injury.7
The commenter infers that “[t]he term electro-diagnostic apparatus includes the type of apparatus
used in the fields cited above, i.e., electrophysiology, electromyography and similar,” as well as
“additional types of ‘electro diagnostic’ apparatus” found in the parenthetical to subheading
9018.19, HTSUS: that is, “(including apparatus for functional exploratory examination or for
checking physiological parameters).”
But the commenter did not address the first sense listed in the Stedman’s entry, which
defines “electrodiagnosis” broadly as “the use of electronic devices for diagnostic purposes.”
Moreover, the commenter did not acknowledge that its proposed eMedicine definition closely
aligns with the second sense in the Stedman’s entry, which defines “electrodiagnosis” as “[b]y
convention, the studies performed in the EMG [electromyography] laboratory, i.e., nerve
conduction studies and needle electrode examination (EMG proper).” The fact that both the
broad and narrow senses appear in the Stedman’s entry suggests that both meanings apply to the
term “electrodiagnosis” as it pertains to subheading 9018.19, HTSUS.
7
See Electromyography and Nerve Conduction Studies: Backgrounds, Indications, and Contraindications,
MEDSCAPE, https://emedicine.medscape.com/article/2094544-overview?form=fpf (last visited Dec. 18, 2024).
In further support of its interpretation of the term “electrodiagnostic,” the commenter also cites a definition pulled
from a Wikipedia article titled “Electrodiagnostic Medicine.” However, we dismiss this Wikipedia article for
consideration due to that website’s unreliability as a source. See Zhejiang Amerisun Tech. Co. v. United States, 687 F.
7
Supp. 3d 1282, 1291–92 (Ct. Int’l Trade 2024) (“reject[ing] the reliability of Wikipedia articles as authoritative
evidence deserving of judicial notice”); BP Prods. North Am. Inc. v. United States, 34 C.I.T. 676, 681 n.10 (“Based
on the ability of any user to alter Wikipedia, the court is skeptical of it as a consistently reliable source of information.
At this time, therefore, the court does not accept Wikipedia for purposes of judicial notice.”).
Further, the EN to heading 9018, HTSUS, supports the notion that the term
“electrodiagnosis” includes a broad category of diagnostic devices (provided that those devices
meet all other requirements under the heading). For example, the proposed ruling referred to a
broadly described “[d]iagnostic apparatus incorporating or operating in conjunction with an
automatic data processing machine for processing and visuali[z]ing clinical data, etc.” listed
among the articles classifiable as an “[e]lectro-diagnostic apparatus” under Section (V)(1) of the
EN. There is no indication in the EN that this general “diagnostic apparatus” must meet the
commenter’s narrow proposed criteria to be classifiable under the heading, thus the article’s
inclusion in the EN weighs against the commenter’s assertions of a narrow interpretation of
“electrodiagnosis”. The commenter did not address how to reconcile this inclusion. While the
commenter raises that subheading is “to be used in limited scope,” the commenter did not offer
any analysis of the EN to heading 9018, HTSUS, and failed to demonstrate why the term
“electro-diagnostic apparatus” in the legal text necessitates a strictly narrow interpretation.
Therefore, we affirm the use of the Stedman’s Medical Dictionary definition for
“electrodiagnosis” as applied in the proposed revocation ruling.
The commenter also argues that our interpretation contradicts an analysis found in
Headquarters Ruling Letter (HQ) H304293, dated November 3, 2020, a ruling letter revoking and
modifying previous treatment of certain digital blood pressure monitors. Prior rulings classified
the blood pressure monitors at issue in HQ H304293 under subheading 9018.90, HTSUS, as
“[o]ther instruments and appliances.” CBP revoked and modified those prior rulings in HQ
H304293 because the blood pressure monitors constituted “electrodiagnostic” appliances of
subheading 9018.19, HTSUS, given their use of electrical components to gauge a patient’s blood
pressure. The commenter points to the following excerpt from HQ H304293:
As described above, the BPMs [i.e., blood pressure monitors] measure the blood
pressure of the user and uses that measurement to create an electrical pulse that is
transmitted to an electronic device, in these cases a control unit with an LCD screen
that displays the measurement in numbers. The measurement of blood pressure is a
type of diagnosis. It is clear from the description of the BPMs that they utilize
electrical components in the performance of the diagnosis.6
The commenter claims that CBP’s treatment of the blood pressure monitors contrasts with
CBP’s proposed treatment of the video goggles because the latter do not “utilize electrical
components in the performance of a diagnosis” and are not checking any physiological
parameters. “The fact that they function electronically,” the commenter states in reference to the
video goggles, “does not[,] in and of itself, mean that the goggles are electrodiagnostic.” The
commenter further argues that “[t]here are many medical instruments and apparatus that may
function electronically but are not considered ‘electrodiagnostic,’” and suggests that such devices
may be provided for under a statistical reporting number provision for “electro-medical
instruments and appliances.”
6
HQ H304293 (Nov. 3, 2020).
8
Notwithstanding the fact that the articles at issue in HQ H304293 and the instant video
goggles are readily distinguishable, we do not find the treatment of the two to be contradictory.
Quite the contrary, the video goggles are in fact “utiliz[ing] electrical components in the
performance of a diagnosis.” As the proposed ruling indicates, the subject video goggles pull
electric power from a connected computer to capture abnormal eye movements under infrared or
visible light for a clinician to diagnose vestibular disorders. This function squarely constitutes
“the use of electronic devices for diagnostic purposes” and aligns with our approach to the blood
pressure monitors of HQ H304293. While the commenter correctly notes that the mere fact that a
device functions electronically does not mean such a device is “electrodiagnostic,” we find it
more than sufficient that the subject video goggles also provide visual insights that are used to
aid a clinician’s diagnosis of vestibular disorders.
Finally, we note that the commenter’s reference to a statistical reporting number provision
contravenes GRI 6, which states inter alia that only subheadings at the same level of indentation
are comparable. Here, the provision for “[e]lectro-diagnostic apparatus” under subheading
9018.19, HTSUS, can only be compared to the relevant provision for “[o]ther instruments and
appliances and parts and accessories thereof” under subheading 9018.90, HTSUS, because both
occur at the same level of indentation. As such, we cannot compare subheading 9018.19,
HTSUS, to a statistical reporting number provision for “electro-medical instruments and
appliances” because neither provision occurs at the same indentation level.
HOLDING:
By application of GRIs 1 and 6, the subject infrared video goggles are classified under
heading 9018, specifically subheading 9018.19.95, 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-diagnostic apparatus (including apparatus for functional exploratory examination
or for checking physiological parameters); parts and accessories thereof: Other: Other: Other.”
The general column one rate of duty is free.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China
classified under subheading 9018.19.95, HTSUS, unless specifically excluded, are subject to an
additional 25 percent ad valorem rate of duty. At the time of importation, you must report the
Chapter 99 subheading, i.e., 9903.88.01, in addition to subheading 9018.19.95, HTSUS, listed
above.
The HTSUS is subject to periodic amendment, so you should exercise reasonable care in
monitoring the status of goods covered by the Note cited above and the applicable Chapter 99
subheading. For background information regarding the trade remedy initiated pursuant to Section
301 of the Trade Act of 1974, including information on exclusions and their effective dates, you
may refer to the relevant parts of the USTR and CBP websites, which are available at
https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and
https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
EFFECT ON OTHER RULINGS:
9
NY N308716 (January 8, 2020) is hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after
publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
10