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HQ 963212

APRIL 14, 2000

CLA-2 RR:CR:GC 963212 JAS


TARIFF NO.: 9018.90.20

Mr. Jeffrey A. Meeks
Meeks & Sheppard
1735 Post Road, Suite 4
Fairfield, CT 06430

RE: Optical Bench; Optical Instrument or Appliance; Component of Laser Optic Treatment System

Dear Mr. Meeks:

Your letter to the Director of Customs National Commodity Specialist Division, New York, dated September 16, 1999, on behalf of Indigo Medical, Inc., inquiring as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an optical bench, has been forwarded to this office for reply. In a subsequent letter, dated February 27, 2000, you make an alternative claim under the same heading. You presented additional facts and legal arguments in support of this position at a meeting in our office on March 30, 2000.


The optical bench is a device incorporated in the BHP Laser Optic Treatment System. The BHP System is used exclusively by medical professionals in particular to treat benign prostatic hyperplasia (enlarged prostates) in men and also for general urological and gastroenterological surgical procedures. The optical bench is apparatus consisting of precision optical lenses and mirrors together with other components whose function is to focus the System’s treatment laser for the purpose of surgically removing diseased soft tissue in and around the prostate.

You contend that while in general optical benches have non-medical applications such as telecommunications, the one at issue here is specially designed and adapted for use in medical and surgical applications. For this reason you maintain it is provided for in heading 9018 as parts and accessories of electro-medical instruments and appliances. You cite a ruling classifying substantially similar apparatus in subheading 9018.90, HTSUS. Alternatively, you maintain that the optical bench is in and of itself an instrument or appliance of heading 9018.

The HTSUS provisions under consideration are as follows:

9013 ... other optical appliances and instruments, not specified or included elsewhere in (chapter 90]...:

9013.80 Other devices, appliances and instruments:

9013.80.90 Other

9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences...; 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

Electro-medical instruments and appliances and parts and accessories thereof:
Electro-medical instruments and appliances.., and parts and accessories thereof


Whether the optical bench is a good included in heading 9013; whether it is an instrument or appliance specified or included in heading 9018.


Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Chapter 90, Note 2(a), HTSUS, states in part that parts and accessories which are goods included in any of the headings of Chapter 90 are in all cases to be classified in their respective headings. Chapter 90, Note 2(b), HTSUS, states that other parts and accessories are to be classified with the machines, instruments and apparatus with which they are solely or principally used. Chapter 90, Additional U.S. Note 3, HTSUS, states the terms “optical appliances” and “optical instruments” refer only to those appliances or instruments which incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose.

Your arguments in support of the heading 9018 classification are summarized as follows. If the optical bench meets the Chapter 90, Additional U.S. Note 3 definition, and is therefore an optical appliance or instrument of heading 9013, as Customs has suggested, it must also be an appliance or instrument for heading 9018 purposes. If so, the optical bench defaults to that heading because heading 9013 only covers optical appliances and instruments not specified or included elsewhere. Stated another way, “optical instruments and appliances” is a subset of and is necessarily included within the larger set of “instruments and appliances.” Conversely, if the optical bench is not an “instrument” or “appliance” it cannot be classified in heading 9013 and must, therefore, be classified in heading 9018 as a part or accessory.

Initially, in the ruling you cite, NY A83400, dated May 24, 1996, trans-urethral microwave thermotherapy apparatus - claimed to perform substantially the same function as the BHP System except that it utilizes microwave energy – was found to be classifiable in subheading 9018.90.60, HTSUS. The apparatus in NY A83400 consisted
of three components, a treatment module, a control module and a delivery system, each of which contained discrete sub-components. While this ruling may be authority for classifying the entire BHP System, there was no suggestion, as there is here, that any of the three components might be a good included in its own heading. For this reason, NY A83400 does not address the issue presently under consideration.

The optical bench at issue is clearly an optical appliance or instrument for purposes of heading 9013. But this heading does not cover such appliances or instruments that are specified or included elsewhere in Chapter 90. In our opinion, if the optical bench is an instrument or appliance for purposes of heading 9013, logic dictates that it must also be an instrument or appliance for purposes of another heading in Chapter 90 where the same words appear, and the other heading suggests no other context. We conclude that the optical bench is not a good included in heading 9013 for purposes of Chapter 90, Note 2(a) because it is specified or included elsewhere, i.e. as an instrument or appliance in heading 9018. Although as previously stated, optical benches have numerous non-medical applications, the submitted literature indicates to us that the one at issue here, used in the treatment of benign prostatic hyperplasia, is principally, if not solely, used in medical or surgical sciences.


Under the authority of GRI I and Chapter 90, Note 2(a), HTSUS, the optical bench is an instrument or appliance included in heading 9018. It is classifiable in subheading 9018.90.20, HTSUS.


John Durant, Director
Commercial Rulings Division

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