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HQ 966556

May 10, 2004

CLA-2 RR:CR:GC 966556 NSH


TARIFF NO.: 9018.90.2000

Area Director
JFK International Airport c/o Chief, Liquidation and Protest Branch Building 77
Jamaica, NY 11430

RE: Protest 4701-03-100174; System KS and System KF loupes

Dear Area Director:

This is our decision on Protest 4701-03-100174, filed by counsel on behalf of Carl Zeiss Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of two models of head-worn loupes. The entries under protest were liquidated between November 2002 and January 2003 under subheading 9013.80.20, HTSUS, and this protest was timely filed on January 30, 2003.


The merchandise at issue are binocular loupes, of which two types are under consideration: System KS and System KF. Loupes are magnifying devices that attach to a headband or prescription eyeglasses and both models at issue utilize the Kepler telescope principle for their telescopic system. The System KS consists of a headband that accommodates a halogen fiber-optic system and may be worn over protective or prescription eyewear. System KS differs from System KF as it does not have a headband, but rather is mounted directly onto a special frame by an optician; a wrench is used to tighten or loosen the mounting assembly.

Protestant claims classification under subheading 9018.50.00, HTSUS, which provides for other ophthalmic instruments and appliances and parts and accessories thereof.


What is the tariff classification under the HTSUS of the head-worn loupes System KS and System KF?


Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

Additional Rule of Interpretation (ARI) 1(a) states that in the absence of special language or context which otherwise requires, 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.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing 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:

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:

9013.80.20 Hand magnifiers, magnifying glasses, loupes, thread counters and similar apparatus

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 ophthalmic instruments and appliances and parts and accessories thereof

Other instruments and appliances and parts and accessories thereof:

Optical instruments and appliances and parts and accessories thereof:

9018.90.20 Other

Because heading 9013, HTSUS, applies only to optical appliances and instruments that are not specified or included elsewhere within chapter 90, we must first consider whether the head-worn loupes at issue are provided for under heading 9018, HTSUS.

Heading 9018, HTSUS, is a principal use provision and therefore subject to Additional U.S. Rule of Interpretation 1(a), HTSUS. See HQ 959752, dated May 23, 1997. In Primal Lite v. United States, 15 F. Supp. 2d 915 (CIT 1998); aff’d 182 F. 3d 1362 (CAFC 1999), the Court of International Trade addressed ARI 1(a), providing that the purpose of principal use provisions in the HTSUS is to classify particular merchandise according to the ordinary use of such merchandise, even though particular imported goods may be put to some atypical use. The court also noted that a principal use provision may function as a controlling legal label, in the sense that even if a particular import is proven to be actually used inconsistently with its principal use, the import is nevertheless classified according to its principal use. See also Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1467 (CAFC 1998). Therefore, classification under the heading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation. Lenox v. Coll. V. United States, 20 CIT, Slip Op. 96-30 (February 2, 1996).

In determining the class or kind of goods to which an article belongs, Customs considers a variety of factors including: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchaser; (3) the channels of trade in which the merchandise moves; (4) the environment of sale (accompanying accessories, manner of advertisement and display); and (5) the usage of the merchandise. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979. In sum, principal use can be defined as an article’s use which exceeds any other single use.

The head-worn loupes at issue, System KS and System KF, are described in advertising literature, and appear to be ruggedly built and designed for long-term application by the user. They utilize an advanced optical system and retail for approximately $1499, making them prohibitively expensive for most home users. From advertising and marketing literature obtained from the Protestant’s website, it is apparent that both of these models are listed under medical field headings, are described as being for use within the medical field, particularly in dentistry, and are not available over the counter. Furthermore, evidence submitted by the Protestant shows that over 99 percent of the System KS and System KF loupes are sold to medical and dental science customers, with distribution and sales efforts focused on those areas. Although all of the above factors do not limit the utility of these loupes for non-medical purposes, we note that in the vast majority of cases these loupes will be used for professional medical applications on account of their high price, specifications, advertising and marketing efforts, and availability. The loupes at issue are provided for under heading 9018, HTSUS.

In considering subheading 9018.50.00, HTSUS, the classification claimed by the Protestant, we note that it applies to “Other ophthalmic instruments and appliances and parts and accessories thereof.”

EN 90.18 sets out three categories of ophthalmic instruments, including exemplars, and states as follows:

Ophthalmic instruments. These fall into various categories (1) Surgical instruments such as corneal trephines, keratomes. Diagnostic instruments such as ophthalmoscopes; binocular loupes with head-bands and binocular-type microscopes, consisting of a microscope, an electric lamp with a slit, and a head-rest, the whole being mounted on an adjustable support, for the examination of the eyes [Emphasis added]; tonometers (for testing the intra-ocular tension); eye specula. Orthoptic or sight-testing apparatus including amblyoscopes, retinoscopes, skiascopes, strabometers, keratometers, keratoscopes, trial-cases (of lenses) and trial-frames (for carrying the trial lenses), optometric scales, test charts.

The second category, which directly references binocular loupes, supports the understanding that loupes are only considered “ophthalmic instruments” when they are used for the examination of a patient’s eyes; the effect on the eyes of the user is not what determines whether a device is considered ophthalmic. Furthermore, the exemplars for ophthalmic instruments provided in the remaining two categories of the EN are not similar to the loupes at issue.

This understanding of the term ophthalmic is further supported by several lexicon definitions, which provide the following meanings for the word “ophthalmic.” The American Heritage Dictionary (2d College ed.; 1982), defines “ophthalmic,” in pertinent part, as “[o]f or pertaining to the eye; ocular.” The Compact Edition of the Oxford English Dictionary, Vol. I (R.W. Burchfield, ed. 1987), defines “ophthalmic,” in pertinent part, as “[g]ood for diseases or disorders of the eye; that treats such maladies; that performs, or is used for, operations on the eye.” Webster’s Third New International Dictionary of the English Language Unabridged (Philip Babcoci Gove, Ph.D. ed., Merriam-Webster, Inc. 1986), defines “ophthalmic,” in pertinent part, as “for use on or in the eye.”

From the information provided by the Protestant, it is apparent that the loupes at issue conform neither to the EN nor lexicon definitions provided for the term “ophthalmic” because they are not being used as an instrument for examining or treating the eyes. Rather, they are used to enhance the vision of the user’s eyes for medical applications that are often unrelated to a patient’s eyes. As such, despite being optical instruments, their primary applications for other medical use exempts them from being considered ophthalmic instruments and therefore classification under subheading 9018.50.00, HTSUS, is precluded.

However, EN 90.18 also addresses various types of instrumentation used more generally in medicine or surgery, stating in pertinent part as follows:

It should also be noted that a number of the instruments used in medicine or surgery are, in effect, tools (e.g., hammers, mallets, saws, chisels, gouges, forceps, pliers, spatulae, etc.) Such articles are classified in this heading only when they are clearly identifiable as being for medical or surgical use by reason of their special shape, the ease with which they are dismantled for sterilization, their better quality manufacture, the nature of the constituent metals or by their get-up. [Emphasis in original].

The instruments and appliances classified here may be equipped with optical devices [Emphasis added]; they may also make use of electricity, either as motive power or for transmission, or as a preventive, curative or diagnostic agent.

As previously described, the System KS and System KF loupes are high quality optical devices with their primary use being as instruments within the medical field. Because of the specifications of these particular models, they are still classified under heading 9018, HTSUS, specifically subheading 9018.90.20, HTSUS, as “Other instruments and appliances and parts and accessories thereof: Optical instruments and appliances and parts and accessories thereof: Other.”


The System KS and System KF binocular loupes are classified under subheading 9018.90.2000, HTSUS, as “[i]nstruments 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: [o]ther instruments and appliances and parts and accessories thereof: [o]ptical instruments and appliances and parts and accessories thereof: [o]ther.” The applicable rate of duty is free.

Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to ALLOW the protest in full.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director
Commercial Rulings Division

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