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HQ 088231


March 8, 1991

CLA-2 CO:R:C:M 088231 CMS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9012.10.00
9031.40.00

District Director of Customs
Patrick V. McNamara Bldg.
477 Michigan Avenue
Detroit, MI 48266

RE: Application For Further Review Of Protest No. 3801-9-002721 (October 19, 1989); Scanning Laser Microscope; Optical Microscopes; Measuring, Checking Instruments And Appliances

Dear Sir:

This protest was filed against your liquidations dated September 1, 1989, and September 8, 1989, in which certain scanning laser microscopes were classified in 9031.40.00, HTSUSA.

FACTS:

The merchandise consists of the WSI 1000R Scanning Laser Microscope. The microscope is essentially comprised of a laser, photodetector, data analysis unit, monitors and video camera. The product projects a laser beam onto the specimen through a series of lenses. The data resulting from the interaction between the laser and the specimen is collected by the photodetector and processed by the data analysis unit. The resulting images appear on the video monitors. Images of specimens recorded with the video camera can also be displayed on the monitors.

The product brochure states that the product is used for semiconductor analysis, in biological studies and in other applications including forensic science investigations.

ISSUE:

Is the merchandise classified in Heading 9012 as microscopes other than optical microscopes, or in Heading 9031 as measuring or checking instruments, appliances and machines, not specified or included elsewhere?

LAW AND ANALYSIS:

Heading 9012 in part describes microscopes other than optical microscopes.

Optical microscopes use optical elements to form and magnify images of the specimen. Van Nostrand's Scientific Encyclopedia, 7th Ed. (1989), p. 1845, provides:

Optical Microscope

A microscope usually refers to a compound microscope. The compound microscope forms the image by a two-stage process and consists of an objective and an ocular. A simple microscope uses only objectives to form an image...

McCrone, Walter C., Polarized Light Microscopy, Ann Arbor Science Publishers Inc. (1979), p. 15, provides:

Objectives are the most important optical component of the compound microscope. They form the intermediate image of the object, which is subsequently examined with the ocular.

The scanning laser microscope under consideration is neither a compound nor a simple optical microscope. It does not use microscope objectives to form and magnify images of the specimen. The images are formed when the collected data is processed electronically and displayed on a monitor. Although the microscope has optical elements, these elements are used to focus the laser beam onto the specimen. They are not the image forming optical elements which are the principal and most important optical components of "optical microscopes". In other instruments optical elements which are used to focus light may be principal optical elements.

Although the scanning laser microscope projects a laser beam and not a beam of electrons, its method of forming images is much more similar to that of an electron scanning microscope than an optical microscope. Van Nostrand's Scientific Encyclopedia, supra, p. 1043, provides that in an electron microscope the specimen "...emits secondary electrons that are generated by the action of the primary beam. These secondary electrons are collected and amplified by the instrument... The picture is displayed on a cathode ray tube from which it can be photographed."

The Explanatory Notes to Heading 9012, p. 1477, provide that Heading 9012 covers electron microscopes including scanning electron microscopes.

The Explanatory Notes to Heading 9012, p. 1477, also provide that "[e]lectron microscopes differ from optical microscopes in that they use a beam of electrons instead of light rays." Although the scanning laser microscope uses a laser beam and not a beam of electrons, it does not pass light through an objective to form an image like optical microscopes. The Explanatory Notes to Heading 9012 provide that certain microscopes which collect data from optical rays and process them into images are Heading 9012 microscopes. For example, The Explanatory Notes at p. 1477, provide that in electron scanning microscopes:

[i]nformation is obtained by measuring, for example, the electrons transmitted, the secondary electrons emitted, or the optical rays. The result may then be displayed on a monitor screen which can be incorporated in the microscope.

(emphasis added)

The scanning laser microscope under consideration is a microscope other than an optical microscope. The product is described by Heading 9012. The video camera component of the product is subsidiary to the product's function as a microscope. The microscope may be used to measure or check certain qualities of the specimen but it is not classified in Heading 9031 which describes measuring or checking instruments not specified or included elsewhere. The merchandise is specified by and included in Heading 9012 and is classified in 9012.10.00, HTSUSA.

HOLDING:

The WSI 1000R Scanning Laser Microscope is classified as a microscope other than an optical microscope, in 9012.10.00, HTSUSA. The Protest should be granted. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,


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