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HQ 951468

April 22, 1992

CLA-2 CO:R:C:M 951468 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9012.10.00

Mr. Jon E. Sollid
President and CEO
Sollid Optics, Inc.
365 Valle Del Sol
Los Alamos, NM 87544

RE: "Aladin Thermo Microscope"; Heading 9011; Heading 9012; EN 90.11; EN 90.12(A); HQ 088231

Dear Mr. Sollid:

This is in response to your letters of October 23, 1991, and February 5, 1992, to Customs in New York, concerning the classification of the "Aladin Thermo Microscope" under the Harmonized Tariff Schedule of the United States (HTSUS). As you were advised by NY 871914, dated March 25, 1992, this matter was referred to this office for response.

FACTS:

The "Aladin Thermo Microscope" is designed to allow its operator to view beneath the surface of a specimen using photothermal techniques. The microscope is used to detect near- surface material cracks, discontinuities, and inhomogeneities of a material. It generates a thermal image by focusing a laser beam which heats the surface under examination and diffuses a thermal wave into the material. For example, changes in thermal material properties at a crack in a specimen cause an accumulation of heat which then changes the surface temperature of the specimen. The surface temperature is observed by measuring the infrared radiation which is then used to build up a thermal image. The measured signals from the thermal image are displayed on a monitor and then processed. Because structural information can be determined in the thermal image by different amplitudes and color levels, an operator can detect inhomogeneities.

The image that is displayed is an infrared image, not an optical one. However, an optical microscope is used to direct a pulse of visible or near infrared radiation to a specimen.

ISSUE:

What is the proper classification of the "Aladin Thermo Microscope" under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 9011, HTSUS, provides for: "[c]ompound optical microscopes, including those for photomicrography, cinemicrography or microprojection; parts and accessories thereof."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. In part, Explanatory Note 90.11 (pp. 1475-1476), HTSUS, states that:

[a] compound optical microscope normally comprises:

(I) An optical system consisting essentially of an objective designed to produce a magnified image of the object, an eyepiece which further magnifies the observed image. The optical system usually also incorporates provision for illuminating the object from below (by means of a mirror illuminated by an external or an integral light source), and a set of condenser lenses which direct the beam of light from the mirror on to the object.

(II) A specimen stage, one or two eyepiece-holder tubes (according to whether the microscope is the monocular or binocular type), and an objective-holder (generally revolving).

It is our position that the "Aladin Thermo Microscope" does not fit the description of a compound microscope as provided in Explanatory Note 90.11, HTSUS. The primary reason is that the subject microscope does incorporate the above described optical system. In fact, it is stated in the provided literature that "[b]y contrast with the information on surfaces derived using optical methods, the thermal images provide valuable additional 3-D information as a function of the penetration of the thermal waves." (emphasis supplied). Therefore, the subject microscope is not classifiable under heading 9011, HTSUS.

Heading 9012, HTSUS, provides for: "[m]icroscopes other than optical microscopes; diffraction apparatus; parts and accessories thereof." In part, Explanatory Note 90.12(A) (p. 1477) states that:

[t]his heading also includes scanning electron microscopes in which a very fine beam of electrons is directed repeatedly onto different points of the sample. Information 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.

Although the "Aladin Thermo Microscope" incorporates an infrared laser beam instead of an electron beam, its operation is very similar to those microscopes described in heading 9012, HTSUS. See HQ 088231, dated March 8, 1991.

Consequently, it is our position that the "Aladin Thermo Microscope" is classifiable under subheading 9012.10.00, HTSUS, which provides for: "[m]icroscopes other than optical microscopes; diffraction apparatus."

HOLDING:

The "Aladin Thermo Microscope" is classifiable under subheading 9012.10.00, HTSUS. The general, column one rate of duty is 4.4 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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