CLA-2 CO:R:C:M 953652 LTO
Mr. Steven P. Kersner
Ross and Hardies
888 Sixteenth Street, N.W.
Washington, D.C. 20006-4103
RE: Endoscopes (video and nonvideo); medical apparatus for
functional exploratory examination; optical; heading 8525;
EN 90.18; GRI 3(a); Section XVI, note 1(m)
Dear Mr. Kersner:
This is in response to your letters of March 22 and July 27,
1993, on behalf of Olympus Corporation, requesting the
classification of nonvideo and video endoscope systems under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The articles in question are nonvideo and video endoscope
systems (hereinafter "endoscopes"). Endoscopes are instruments
that are generally used for visualizing the interior of a hollow
organ, such as the rectum or urethra. The submitted brochures
refer to two different systems: the Olympus EVIS 100 and the OES
TV System. The EVIS 100 consists of an endoscope with a multi-
channel insertion tube that contains an objective lens and other
channels for light guide, air/water nozzle and instruments, a
video system center, television monitor and a video tape recorder.
The OES TV System consists of a video camera head that is attached
to a standard fiberscope. The camera head relays the signals to
a control center and onto a television monitor and video tape
recorder.
The endoscopes may be fitted with accessories, such as
forceps, cytology brushes, biopsy needles, etc. However, these - 2 -
accessories are imported separately from the endoscopes with
which they will be used. Further, while the endoscopes can be
adapted for surgical purposes, you state that they are principally
used for diagnostic purposes, and have provided the following
percentage breakdown of diagnostic versus operative uses for
various Olympus endoscopes:
Diagnostic use
percentage
Gastroscopes 90
Duodenoscopes 70-80
Colonoscopes 60-70
Sigmoidoscopes 95
Bronchoscopes 100
Flex Cystoscopes 100
Nasopharyngoscopes 100
"ENF" UltraSound System 100
Cystoscopes 60-70
Uretal Scopes 75
Hysteroscopes 80
Arthroscopes 50-60
Laparoscopes 30
ISSUE:
Whether the endoscopes in question are principally used for
diagnostic purposes and therefore classifiable as electro-
diagnostic apparatus for functional exploratory examination under
subheading 9018.19.40, 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 subheadings at issue are as follows:
8525 Transmission apparatus for radiotelephony,
radiotelegraphy, radiobroadcasting or
television, whether or not incorporating
reception apparatus or sound recording or
reproducing apparatus; television cameras:
8525.30.00 Television cameras
* * * * * * * * * * * * *
9018 Instruments and appliances used in medical,
surgical, dental or veterinary sciences, - 3 -
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
* * * * * * * * * * * * *
9018.90 Other instruments and appliances and
parts and accessories thereof:
Optical instruments and appliances and
parts and accessories thereof:
9018.90.20 Other
It is your position that the nonvideo endoscopes are
classifiable under subheading 9018.19.40, HTSUS, while the video
endoscopes are classifiable under subheading 8525.30.00, HTSUS.
Note 1(m) to section XVI, HTSUS, states that chapter 85 does not
cover articles of chapter 90. Therefore, if the video endoscopes
are chapter 90 articles, they cannot be classified under
subheading 8525.30.00, HTSUS.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Co-operation
Council's official interpretation of the Harmonized System. While
not legally binding, the ENs provide a commentary on the scope of
each heading of the Harmonized System, and are generally
indicative of the proper interpretation of these headings. See
T.D. 89-80.
EN 90.18, pg. 1487, states that heading 9018, HTSUS, "covers
a very wide range of instruments and appliances which, in the vast
majority of cases, are used only in professional practice . . .
either to make a diagnosis, to prevent or treat an illness or to
operate, etc." The notes further state that these instruments and
appliances include endoscopes (i.e., gastroscopes,
peritoneoscopes, bronchoscopic telescopes, cystoscopes,
urethroscopes, resectoscopes). EN 90.18, pg. 1490.
It is our opinion that the endoscopes are classifiable under
heading 9018, HTSUS, and therefore, cannot be classified under
heading 8525, HTSUS. Thus, it is necessary to determine whether - 4 -
they are classifiable under subheading 9018.19.40, HTSUS, as
electro-diagnostic apparatus for functional exploratory
examination, or under subheading 9018.90.20, HTSUS, as optical
medical instruments and appliances.
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides
as follows:
a tariff classification controlled by use (other than
actual use) is to be determined in accordance with the
use in the United States at, or immediately prior to,
the date of importation, of goods of that class or kind
to which the imported goods belong, and the controlling
use is the principal use . . .
In your letter of January 10, 1994, you state that "the
primary or chief use for the medical endoscope is for diagnostic
purposes. In fact, most of the models of endoscopes are used
almost exclusively for diagnostic purposes." You further state
that Olympus America has approximately 80% of the medical
endoscope market in the U.S., and have provided a percentage
breakdown of diagnostic versus operative uses for Olympus
endoscopes. With the exception of the Laparoscope, all are
principally used for diagnostic purposes. Based on these
representations, it is our opinion that endoscopes in question
(with the exception of the Laparoscope), which are imported
without accessories, are prima facie classifiable under subheading
9018.19.40, HTSUS, as electro-diagnostic apparatus used for
functional exploratory examination.
However, the endoscopes (including the Laparoscope) are also
prima facie classifiable as optical medical instruments under
subheading 9018.90.20, HTSUS. Additional U.S. Note 3 to chapter 90
states that the term optical instruments refers only to those
"instruments which incorporate one or more optical elements, but
do not include any . . . instruments in which the incorporated
optical element or elements are solely for viewing a scale or for
some other subsidiary purpose." The endoscopes incorporate a
variety of optical elements, and function through the use of such
elements, which are used to relay images of internal body
structures to an external monitor or camera. The endoscopes are
therefore covered by subheading 9018.90.20, HTSUS. Because the
endoscopes are prima facie classifiable under two subheadings, it
is necessary to resort to GRI 3 (which is made applicable at the
subheading level by GRI 6).
GRI 3(a) states that when "goods are, prima facie,
classifiable under two or more headings, classification shall be
effected as follows: The heading which provides the most specific
description shall be preferred to headings providing a more
general description [emphasis in original]." Subheading
9018.90.20, HTSUS, describes optical medical instruments, whereas - 5 -
subheading 9018.19.40, HTSUS, describes, in this instance, a
particular type of optical medical instrument--an electro-
diagnostic instrument for functional exploratory examination.
Accordingly, the endoscopes (with the exception of the Laparoscope
which is classifiable under subheading 9018.90.20, HTSUS) are
classifiable under subheading 9018.19.40, HTSUS.
HOLDING:
The Olympus EVIS 100 and OES TV Systems principally used for
diagnostic purposes (Gastroscopes, Duodenoscopes, Colonoscopes,
Sigmoidoscopes, Bronchoscopes, Nasopharyngoscopes, Flex
Cystoscopes, "ENF" UltraSound System, Cystoscopes, Uretal Scopes,
Hysteroscopes, Arthroscopes) are classifiable under subheading
9018.19.40, HTSUS, which provides for medical apparatus for
functional exploratory examination. The corresponding rate of
duty for articles of this subheading is 7.9% ad valorem.
The Olympus EVIS 100 and OES TV Systems that are not
principally used for diagnostic purposes (Laparoscopes) are
classifiable under subheading 9018.90.20, HTSUS, which provides
for optical medical instruments. The corresponding rate of duty
for articles of this subheading is 10% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division