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HQ 962858




January 23, 2001

CLA-2 RR:CR:GC 962858 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9002.19.00; 9018.19.40

Port Director
U.S. Customs Service
10 Causeway Street
Boston, MA 02222-1059

RE: Protest 0401-99-100034; Endoscopes; Needle assemblies

Dear Sir:

This is our decision regarding Protest 0401-99-100034 filed on behalf of Smith & Nephew, Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of endoscopes and needle assemblies.

FACTS:

The entry at issue was filed on January 2, 1998, and was liquidated on November 13, 1998. The CF 19 (protest) was filed on February 10, 1999. In addition to the CF 19, counsel for the protestant made written submissions dated March 18, 1999 and October 4, 2000. Counsel also had an oral conference at Customs Headquarters.

The merchandise consists of needle assemblies and endoscopes. The protestant entered the needle assemblies and endoscopes under subheading 9018.19.95, HTSUS.

The entry was rate advanced and liquidated under subheadings 9002.19.00, HTSUS (needle assemblies) and 9018.19.40, HTSUS (endoscopes).

The protestant claims classification of both the endoscopes and the needle assemblies under subheading 9018.19.95, HTSUS.

ISSUES:

What is the tariff classification of endoscopes? What is the tariff classification of needle assemblies?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall 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 GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

9002 Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; parts and accessories thereof:

Objective lenses and parts and accessories thereof:

9002.19.00 Other

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:

9018.19 Other:

9018.19.40 Apparatus for functional exploratory examination, and parts and accessories thereof

Other:

9018.19.95 Other

Endoscopes

The protestant claims that endoscopes are not “apparatus for functional exploratory examination” and therefore are not classified in subheading 9018.19.40, HTSUS, because they are not “functional,” as that term is used in the medical community. It asserts that endoscopes are classified in subheading 9018.19.95, HTSUS.

The Encyclopedia Americana (1993) states that “endoscopy ... is the examination of a body cavity or organ by means of a tubular instrument called an endoscope. Endoscopes are equipped with a lighting system and a series of lenses. They are used chiefly in diagnosis and the removal of tissue or secretions for biopsy.” The McGraw-Hill Encyclopedia of Science and Technology (1992) states: “Medical endoscopes range in size from less than 0.08 in. (2 mm) for viewing inside the arteries (cardioscope) to 0.6 in. (15mm) for examining the colon (colonoscope). The latter has an operating channel large enough to perform surgery via remotely controlled forceps or electrosurgical snares. Intermediate-sized endoscopes are used to view the bronchi (bronchoscope), the kidneys (nephroscope), the bladder (cystoscope), the throat (laryngoscope), and the stomach (gastroscope).” Dorland’s Illustrated Medical Dictionary (“Dorland’s”) (2000) defines endoscope as: “an instrument for examination of the interior of a cavity or hollow viscus; there are both rigid and flexible types.”

Dorland’s defines “functional” as: “1. Of or pertaining to a function. 2. Affecting the function but not the structure.” Dorland’s defines “function” as: “1. The special, normal, or proper physiologic activity of an organ or part ...”

There is no dispute that endoscopes are provided for in heading 9018, nor that they are electro-diagnostic apparatus. See EN 90.18 (I) (O), which provides that heading 9018 includes endoscopes used for medical purposes.

We are not persuaded by the protestant’s claim that endoscopes are not “functional,” as that word is used in subheading 9018.19.40, HTSUS. Endoscopes perform tasks beyond mere observation of the structure or organs and cavities. Endoscopes serve to reveal and record physical activity within the organs and cavities examined, and aid in diagnosis.

After a careful consideration of this issue, we determine that the endoscopes are classified in subheading 9018.19.40, HTSUS, as: “Instruments and appliances used in medical, surgical, dental or veterinary sciences ... : Electro-diagnostic apparatus ... : ... Other: Apparatus for functional exploratory examination ...” This determination is consistent with HQ 953652 and HQ 955837, both described below.

In HQ 953652 dated April 13, 1994, Customs held certain endoscopes, other than laparoscopes, to be classified in subheading 9018.19.40, HTSUS. In HQ 955837 dated November 2, 1994, Customs held, inter alia, that a direct-view scope and videoendoscope are classified in subheading 9018.19.40, HTSUS.

In making our determination we conferred with Customs Laboratories & Scientific Services, which agrees with our determination.

Needle Assemblies

The protestant states in pertinent part as follows:

The needle assemblies in issue are comprised of an inner tube assembly and an outer tube assembly ... Customs officials recognized that the inner tube assembly was classified under the provisions for mounted objective lenses in HTSUS subheading 9002.19.0000. [Protestant] fully agrees with that position. However, [protestant] believes that when a complete mounted objective lens is assembled with other components of an endoscope, the new subassembly is classified as a part of the endoscope. ...
The inner tube assembly is a complete mounted objective lens classified in Heading 9002. It is in a permanent mounting and is designed to be incorporated with other parts – specifically, the outer tube assembly. When incorporated, the two components form a part of an endoscope. A mounted objective lens incorporated with other parts does not form a mounted objective lens ... ...
The needle assembly is “more than” a mounted lens. It must be classified as a part of the endoscope.

The heading text of 9002 includes mounted lenses, prisms, and other optical elements, which are in turn parts of other instruments or apparatus. EN 90.02 provides that, subject to certain conditions, heading 9002 includes objective lenses, additional lenses, and mounted prisms for instruments or apparatus for physical or chemical apparatus. EN 90.02 further provides: “The objective lens in an optical instrument is the lens system that faces the object, giving an image of the latter. It may be a single lens but is usually a group of lenses in a single mounting.”

In NY C83391 dated January 28, 1998, issued to the protestant, Customs held certain needle assemblies to be classified in subheading 9002.19.00, HTSUS, as objective lenses. The goods were described as follows: “The needle assemblies which will be imported by Smith & Nephew consist of two main components, the inner tube assembly and the outer tube assembly. The inner tube assembly is a tube which contains a number of relay lenses, which are referred to as objective lenses. At one end of the tube there is a prism. The inner tube is assembled into the outer tube which also contains the needle, or insertion portion of the endoscope, and the optical fibers which are used to transmit light from an external light source.” The needle assemblies in NY C83391 are the same goods as the needle assemblies at issue in this protest.

In NY C87079 dated May 13, 1998, Customs held that the inner tube assembly for a needle assembly was classified in subheading 9002.19.00, HTSUS. In HQ 955837 dated November 2, 1994, Customs held that a needle assembly consisting of a fully-assembled outer tube sub-assembly (outer tube sub-assembly with lenses and connectors) was classified in subheading 9002.19.00, HTSUS. In HQ 952672 dated May 6, 1993, Customs held that an outer tube sub-assembly was classified in subheading 9002.19.00, HTSUS.

After a careful consideration of this issue, we determine that the needle assemblies at issue here are classified in subheading 9002.19.00, HTSUS. The needle assemblies are described by the language of heading 9002, as well as by the language of EN 90.02. This determination is consistent with the rulings cited above, including NY C83391, which was issued to the protestant with respect to the same merchandise.

HOLDING:

The endoscopes are classified in subheading 9018.19.40, HTSUS, as: “Instruments and appliances used in medical, surgical, dental or veterinary sciences ... : Electro-diagnostic apparatus ... : ... Other: Apparatus for functional exploratory examination ...”

The needle assemblies are classified in subheading 9002.19.00, HTSUS, as: “Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; parts and accessories thereof: Objective lenses and parts and accessories thereof: ... Other.”

You are instructed to DENY the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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