CLA-2 OT:RR:CTF:EMAIN H302445 ALS
Port Director
U.S. Customs and Border Protection
610 S. Canal Street, Room 300
Chicago, Illinois 60607
Attn.: Mr. John Mosquera, Supervisory Import Specialist, Consumer Product Mass Merchandise Center of Excellence and Expertise
RE: Application for Further Review Protest No. 4196-16-100685; Tariff classification of Optical Image Bundles
Dear Port Director:
This letter is in reply to an Application for Further Review (“AFR”) of Protest number 4196-16-100685, filed on behalf of Strebesana Resources, LLC (also referred to herein as “Protestant”) on December 15, 2016. The Protest is against U.S. Customs and Border Protection’s (“CBP’s”) tariff classification of the above-referenced Optical Image Bundles (also referred to herein as “OIBs”) under subheading 9013.80.90 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The Optical Image Bundle consists of a stainless-steel tube into which optical fibers are bundled and inserted. Glass lenses are bonded to one end of the optical imaging fibers. After importation, the OIBs are further assembled into a laser-surgery probe. After importation, the OIBs are stated to be assembled into a laser-based endoscope, which in turn is assembled into microprobe system, to be used in medical procedures.
The Protestant entered the OIBs under subheading 9018.90.20, HTSUS, as instruments used in medical sciences. CBP liquidated the subject entries under subheading 9013.80.90, HTSUS, as other optical instruments. The Protestant claims that the OIBs should be classified under heading 9018, HTSUS.
ISSUE:
Is the Optical Image Bundle, as described above, properly classified under heading 9013, HTSUS, which provides for “Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof”, or heading 9018, 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”?
LAW AND ANALYSIS:
Initially, we note that the Protest was timely filed on December 15, 2016, which is within 180 days of the date of the liquidation of the earliest subject entry, August 12, 2016. See 19 U.S.C. §1514(c)(3)(B). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. §1514(a)(2). Further Review of Protest No. 4196-16-100685 is properly accorded to the Protestant pursuant to 19 CFR 174.24(b).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order.
The following headings and subheadings of the HTSUS are under consideration in this case:
9013 Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof:
9013.80 Other devices, appliances and instruments:
9013.80.90 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:
9018.90 Other instruments and appliances and parts and accessories thereof:
9018.90.20 Other…
* * * * * *
Note 2 to Chapter 90, HTSUS, provides, in pertinent part, as follows:
Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8487, 8548 or 9033) are in all cases to be classified in their respective headings;
Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind
As such, before the instant OIB can be classified as a part suitable for use solely or principally with a product of heading 9018, HTSUS, per Note 2(b) to Chapter 90, we must consider whether it is itself prima facie classifiable as a good of heading 9013, HTSUS. This is consistent with Additional U.S. Rule of Interpretation (AUSRI) Rule 1(c), which provides that “In the absence of special language or context which otherwise requires--a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory”.
The Protestant contends that the OIB should be classified under heading 9018 because it “is the most specific provision [among those at issue] both on the basis of intended and actual use and unsuitability of use for other purposes….” The Protestant alternatively contends that the OIB should be classified under heading 9002 because it “is the most specific alternative classification to [heading 9018]”.
That te OIB might be installed onto an instrument of heading 9018, HTSUS, after importation is secondary to the question, per Note 2(a) to Chapter 90, of whether it is covered by the scope of heading 9013, HTSUS, as an optical appliance or instrument. In its condition as imported, the Optical Image Bundle is a series of lenses bonded to the optical image fibers, all encapsulated in stainless steel tube. This is itself an optical appliance or instrument. As such, the OIB is specifically covered under heading 9013 as its own entity, not as a part of another instrument. Applying Note 2(a) of Chapter 90, HTSUS, and AUSRI Note 1(c), HTSUS, to this case, the OIB is properly classified under heading 9013, HTSUS.
The Protestant also claims that the OIB is eligible for duty-free treatment under the Nairobi Protocol (Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. No. 100-418, 102 Stat. 1107)) upon importation under subheading 9817.00.96, HTSUS, which provides for “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles: Articles for the blind: Other…” The Protestant contends that subheading 9817.00.06 applies to the OIB because the “E2 Ophthalmic Laser Endoscopy System is used in the management of glaucoma [and] [t]he E-O optical image bundles are specifically designed and intended for use in this system”. As we concluded above, however, the OIB is, in its condition as imported, properly classified as an optical instrument of heading 9013 and not as a part of any article. Thus, the OIB is not an article “specially designed or adapted for the use or benefit of the blind...” Therefore, neither the Nairobi Protocol nor heading 9817 are applicable in this case.
HOLDING:
By application of GRIs 1 (Note 2(a) to Chapter 90) and 6, the Optical Image Bundle is classified under heading 9013, HTSUS, and specifically under subheading 9013.80.90, HTSUS, which provides for “Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof: Other devices, appliances and instruments: Other…” The general, column one rate of duty for merchandise classified in this subheading is 4.5 percent.
Duty rates are provided for your convenience and 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.
You are instructed to DENY the protest.
You are to notify the protestant no later than sixty days from the date of this decision. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov or other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division