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HQ 956161


April 5, 1994

CLA-2 CO:R:C:M 956161 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9011.80.00

Mr. Terry Suzuki
Win Systems of America Corporation
299 Pleasant Street
Haworth, New Jersey 07641

RE: Hi-Scope System; Video Microscope System; Model KH-2200; Charge Coupled Device; CCD; HQ 953116; HQ 088025; HQ 953116; HQ 952164; HQ 088121; HQ 085754; HQ 086847; HQ 088336; NEC America, Inc.; Corporacion Sublistatica, S.A.; Davis Turner & Co.; Simmon Omega, Inc.; Trans-Atlantic Co.; Ameliotex, Inc.; Esco Mfg. Co.;

Dear Mr. Suzuki:

This is in reply to your letter of February 22, 1994, to the Area Director of Customs, New York Seaport, requesting classification of the "Hi-Scope System," video microscope system, model KH-2200, under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded to this office for reply.

FACTS:

The Hi-Scope video microscope system is designed to depict magnified, color images on a television monitor for viewing and video storage. It can be used for quality control, inspection, film inspection, dermatology examination, etc.

The system consists of a hand held wand which incorporates a lighting unit, zoom lenses of varying magnification, and a charge coupled device ("CCD") video camera. The wand is connected to a main control box by a fiber optic cable. The control box has a video output jack which carries a standard television broadcast signal to any type of output device, such as; video monitor, VCR, video printer, analyzer, floppy recorder, echo-lyzer, or digi- scale (none of which are included).

The internal sensor element is a CCD. CCDs are semiconductors which contain a grid of numerous photosensitive cells, or pixels. As the image-forming light of an object is focused onto the grid, each pixel receives a certain quantity of light which is translated
into an electrical charge. The result is a pattern of electrical charges which represent an image.

ISSUE:

What is the classification of the "Hi-Scope System," video microscope system model KH-2200, under the Harmonized Tariff Schedule of the United States (HTSUS)?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

You contend that classification is appropriate under heading 8525, HTSUS, which provides for television cameras. While the Hi- Scope system reproduces images on a TV monitor, it incorporates magnification lenses and is designed exclusively for the viewing of magnified images. Therefore, the Hi-Scope is not within the scope of heading 8525, HTSUS. Whereas, heading 9011, HTSUS, provides for: "[c]ompound optical microscopes, including those for photomicrography, cinemicrography or microprojection; parts and accessories thereof." The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally an indication of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 90.11, page 1475, states as follows:

Whereas magnifiers of heading 90.13 have only a single stage of magnification of relatively low power, the compound optical microscope of this heading has a second stage of magnification for the observation of an already magnified image of the object.

The instant zoom microscopic lenses incorporate fourteen high quality optic elements which "give you an image you can't distinguish from one taken with a fixed magnification lens." See the Hi-Scope System brochure, page 8. Therefore, these lenses qualify as compound optical microscopic lenses due to their multiple lens design.

The court has stated that "[i]t must also be remembered that the tariff statutes were enacted 'not only for the present but also for the future, thereby embracing articles produced by technologies which may not have been employed or known to commerce at the time
of the enactment * * *.'" NEC America, Inc. v. United States, 8 CIT 184, 186 (1984), citing Corporacion Sublistatica, S.A. v. United States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669 (1957). See also Simmon Omega, Inc. v. United States, 83 Cust. Ct. 14, C.D. 4815 (1979), and Trans-Atlantic Co. v. United States, 471 F. 2d 1397, 60 CCPA 100, C.A.D. 1088 (1973), in which the courts have held that technological advancements and "improvement in the design of an article does not militate against its continuing to be a form of the named articles."

Furthermore, it is commonly and commercially known as a "video microscope system." The court has stated that "[t]he tariff schedules are written in the language of commerce, and the terms used are to be given their commercial or common meaning." See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200, 565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA 71, 73 C.A.D. 1167, 530 F.2d 949, 951 (1976).

HQ 953116, dated October 6, 1993, was a classification decision relating to the "MicroImager Digital Camera." This device was designed to be attached to various other devices, such as microscopes, telescopes, x-ray image converters, etc. However, it was separately presented from those devices. As the EN regarding heading 90.11, HTS, states above: "[s]eparately presented photographic or cinematographic cameras for photomicrography or cinephotomicrography are excluded (heading 90.06 or 90.07 respectively)." Therefore, it was held to be classifiable pursuant to its function, in subheading 8525.30.00, HTSUS, which provides for television cameras.

HQ 088025, dated January 17, 1991, was a classification decision relating to the "Leco 2001 Image Analysis System" was generally used with microscopes (but was not incorporated into a microscope) and was designed specifically for measuring and checking functions. Therefore, it was held classifiable in subheading 9031.40.00, HTSUS, which provides for other optical measuring and checking instruments.

The Hi-Scope System consists of at least two components: a hand held wand (which incorporates a lighting unit, a lens, and a CCD video camera), and a main control box which is connected via fiber optic cables. Chapter 90, Legal Note 3 states as follows: "[t]he provisions of note 4 to section XVI apply to this chapter." The Legal Note 4 to Section XVI provides the following classification guidance regarding functional units, such as the instant system:

Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly
defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.

The Hi-Scope System is a group of machines, interconnected by cables, intended to contribute to the clearly defined function of optical microscopy. Therefore, the system is properly classifiable in subheading 9011.20.40, HTSUS.

The Hi-Scope system is designed to produce a video (NTSC) image, rather than one captured on film (photographic). Furthermore, CCD video cameras have been consistently held not to be within the scope of the HTSUS term "photographic." In HQ 088336, dated August 20, 1991, and HQ 086847, dated April 20, 1990, Customs held that:

In addition to the guidance provided by the HTSUSA's classification of electrical articles, there is lexicographic authority for the position that electronic devices which use CCD's are distinguished from photographic articles. The McGraw Hill Encyclopedia of Science and Technology, Vol. 3, p. 168, provides:

Electronic camera. Advances in the field of solid-state electronics have made possible the development of the electronic still camera. Unlike photographic cameras, in which film senses and records the image-forming light, the electronic still camera uses a solid-state image sensor to sense the image-forming light and a separate recording medium to record and store the picture. (Emphasisadded).

In our opinion an electronic still video camera which uses a charge coupled device and records electrical representations of images on magnetic discs principally functions as an electrical apparatus and not as a photographic apparatus. Thus, still video cameras are not classifiable as photographic cameras in Heading 9006.

Therefore, the video microscope is not classifiable in subheading 9011.20, HTSUS, which provides for: "[o]ther microscopes, for photomicrography, cinemicrography or microprojection." See also HQ 085754, dated December 26, 1989, and HQ 088121, dated February 26, 1991, in which Customs held that microscopes imported without photographic cameras were not classifiable in subheading 9011.20, HTSUS. Thus, the instant video microscope remains classifiable in subheading 9011.80.00, HTSUS, which provides for other microscopes.

HOLDING:

The "Hi-Scope System," video microscope system, model KH- 2200, is classifiable in subheading 9011.80.00, HTSUS, which provides for: "[c]ompound optical microscopes, including those for photomicrography, cinemicrography or microprojection: [o]ther microscopes." The rate of duty is 8% ad valorem.

Sincerely,

John Durant, Director

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