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HQ 089005


July 26, 1991

CLA-2 CO:R:C:M 089005 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.60

District Director
U.S. Customs Service
Port of Seattle
909 First Avenue
Room 2039
Seattle, WA 98174

RE: Protest No. 3001-90-101387; pocket tele/microscope; Subheading 9013.80.60; Subheading 9013.80.20; Heading 9503; Heading 9005; Subheading 9005.80.40; Chapter 90, General Explanatory Note (I); Explanatory Note 90.05; Explanatory Note 95.03; Heading 9011; Explanatory Note 90.11.

Dear District Director:

Protest for further review number 3001-90-101387 dated 11/28/90, was filed against the liquidation of a plastic pocket tele/microscope within subheading 9005.80.40, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The article under protest is referred to as a "plastic pocket tele/microscope" (T/M). It consists of a telescopic component that can be used to view objects at a distance, and a magnifying component that can be used to magnify objects which are close. It is pen size and contains a pocket clip.

ISSUE:

Whether the subject article is properly classifiable within heading 9503, HTSUSA, which provides for toys; or classifiable within heading 9005, HTSUSA, which provides for optical tele- scopes; or classifiable within heading 9013, HTSUSA, which
provides for other optical appliances and instruments; or classifiable within 9011, HTSUSA, which provides for compound optical microscopes.

LAW AND ANALYSIS:

Heading 9005, HTSUSA, provides for optical telescopes. This heading includes telescopes for hunting, touring, for use at sea, for firing ranges, for health resorts etc. Harmonized Commodity Description and Coding System Explanatory Notes (EN), 90.05 (1990). These telescopes may be in one piece (pocket or other telescopes) or with sliding drawers for focusing. EN 90.05. The subject T/M is partially a pocket telescope. This telescope component satisfies the terms of this heading. However, the T/M also contains a magnifying component which does not satisfy the terms of this heading. Accordingly, the T/M is not properly classifiable within heading 9005, HTSUSA.

Heading 9011, HTSUSA, provides for compound optical microscopes. These normally comprise:

(I) An optical system consisting essentially of an objective designed to produce a magnified image of the object, and 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 monocular or binocular type) and an objective-holder (generally revolving). EN 90.11.

While the subject T/M is partially referred to as a microscope, it does not satisfy the above description of an optical micro- scope. It also does not satisfy any of the other descriptions of microscopes within this Explanatory Note, or the descriptions of other microscopes within EN 90.12. Therefore, the subject T/M is not properly classifiable as a microscope.

Heading 9013, HTSUSA, provides for optical appliances and instruments. The subject T/M satisfies the terms of this heading. It is a combination telescope and magnifier. Sub- heading 9013.80.20, HTSUSA, provides for hand magnifiers and magnifiers (e.g., pocket type or those for office use). The subject T/M contains a component which can be used to magnify
objects. This component satisfies the terms of this subheading. However, the T/M as a whole does not satisfy the terms of this subheading. As stated previously, it also contains a telescope component. Therefore, the subject T/M is not properly classifi- able within subheading 9013.80.20, HTSUSA.

Subheading 9013.80.60, HTSUSA, provides for other optical devices, appliances and instruments. The subject T/M satisfies the terms of this subheading. It contains two optical components (i.e., telescope and magnifier). Accordingly, the subject T/M is properly classifiable within subheading 9013.80.60, HTSUSA.

Chapter 90 covers a wide variety of instruments and apparatus which are, as a rule, characterized by their high finish and high precision. Chapter 90, General EN (I). The protestant cites this language as reason to exclude the subject T/M from chapter 90. However, there are certain exceptions to the general rule that the instruments and apparatus of this Chapter are high precision types. Chapter 90, General EN (I). Simple magnifying glasses are cited as one of the exceptions to the general rule. The subject T/M possesses a simple magnifying component which is similar to the cited exception to the general rule. In addition, the T/M consists of a fully functional telescopic component. Thus, the T/M satisfies one of the exceptions to the general rule regarding high finish and precision, and additionally contains a fully functional telescopic component. Accordingly, the subject T/M is not precluded from classification within Chapter 90 based upon the above cited EN.

Heading 9503, HTSUSA, provides for other toys. The pro- testant argues that the T/M is classifiable as a toy. In order to be classifiable as a toy the subject T/M must be designed for the amusement of children or adults. EN 95.03. The subject T/M does not satisfy this description. It is designed to view objects at a distance and to magnify items which are close. This type of device is not designed for amusement, but to aid human vision. Furthermore, the subject T/M is not specifically referred to within this heading or similar to any of the articles mentioned in this heading as toys. Therefore, the subject T/M is not properly classifiable as a toy.

HOLDING:

The subject pocket tele/microscope is properly classifiable within subheading 9013.80.60, HTSUSA, which provides for other optical devices, appliances and instruments dutiable at the rate of 9 percent ad valorem. Since reclassification of the merchandise as indicated above would result in a higher rate of
duty than the liquidated rate, you should deny the protest in full. A copy of this decision should be attached to the Customs Form 19 Notice of Action and forwarded to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division


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