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HQ 954640




October 25, 1994

CLA-2 CO:R:C:M 954640 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9011.20.80; 9011.80.00

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Protest 1001-93-101806; Axioskop upright microscopes; Axiovert inverted microscopes; binocular phototube; binocular tube; HQs 085754, 088121; "provided with a means for photographing the image;" subheading 9011.20.40; U.S. v. Hannevig; Michaelian & Kohlberg, Inc. v. U.S.

Dear Regional Commissioner:

The following is our decision regarding Protest 1001-93- 101806, which concerns the classification of Axioskop 50 upright microscopes (Axioskop H DIC and Axioskop HD DIC) and Axiovert inverted microscopes (Axiovert 100, 135, 405) under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered on September 30, 1992, and the entry was liquidated on February 5, 1993. The protest was timely filed on April 1, 1993.

FACTS:

The articles in question are Axioskop 50 upright microscopes (Axioskop H DIC and Axioskop HD DIC) and Axiovert inverted microscopes (Axiovert 100, 135, 405). The microscopes are imported with either a binocular tube or binocular phototube. A binocular tube consists of two parallel eyepieces, while a binocular phototube consists of two parallel eyepieces and a separate vertical port to which a camera body, or specially designed microscope camera, may be attached.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100
microscopes, when imported with a binocular tube, are not capable of photomicrography, as the binocular phototube is necessary for documentation. When imported with the binocular phototube, the Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes incorporate all internal photographic optical elements necessary for documentation at the time of importation.

On the other hand, the Axiovert 135 and 405 microscopes incorporate all necessary internal photographic optics, as well as, a separate port to which a camera body, or specially designed microscope camera, may be attached (some models have additional ports for video, etc.). While they are generally imported with a binocular phototube, one is not necessary for documentation.

Counsel for the protestant states that the practice of importing microscopes configured with internal photographic optics is the current norm. Previously, a camera containing all the necessary optical elements would be mechanically affixed to a standard microscope that had no internal photographic optics.

The Axioskop H DIC and Axioskop HD DIC microscopes can be used with any of four different binocular phototubes, selection of which is dependent upon the amount of light desired for photography or for observation. A prism determines which exit port (either observation or for photography) gets what percentage of light. The binocular phototubes also have options for light splitting, and are application-driven. The microscopes are imported with other intermediate elements, including tubes with optics, and sometimes with the mechanical devices necessary to attach a camera body or specially designed microscope camera.

The Axioskop HD DIC microscope differs from the Axioskop H DIC, in that the former is configured for "dark field" (hence the "HD") applications where the specimen appears white on a black background, so that the user can see defects in that specimen. Because the Axioskop HD DIC microscope is designed for material science appliances, where the specimen is generally opaque (light cannot travel through it), the light comes from above the specimen. On the other hand, in a microscope configured for biological applications, where the specimen is generally translucent, the light comes from below the specimen. The primary physical difference between the two Axioskop microscopes is that the Axioskop HD DIC microscope uses a special, extra wide objective that screws into its nosepiece.

The Axiovert 100, 135 and 405 are inverted microscopes. In inverted microscopes, light travels from above the specimen in "U"- shape, below, and then up through, the specimen.

All of the microscopes were entered as compound optical microscopes, for photomicrography, provided with a means for photographing the image, under subheading 9011.20.40, HTSUS. The - 3 -

Axioskop H DIC and Axioskop HD DIC microscopes were classified upon liquidation as other compound optical microscopes, for photomicrography, under subheading 9011.20.80, HTSUS, while the Axiovert 100, 135 and 405 microscopes were classified as other compound optical microscopes, under subheading 9011.80.00, HTSUS.

ISSUE:

Whether microscopes imported without camera bodies, but with all internal photographic optics necessary for photographing an image, can be classified as other compound optical microscopes, for photomicrography, provided with a means for photographing the image, under subheading 9011.20.40, 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 that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The Axioskop H DIC, Axioskop HD DIC, and Axiovert 100, 135 and 405 microscopes are classifiable under heading 9011, HTSUS, which provides for "[c]ompound optical microscopes, including those for photomicrography, cinemicrography or microprojection; parts and accessories thereof." However, the following subheadings are at issue:

9011.20 Other microscopes, for photomicrography, cinemicrography or microprojection:
9011.20.40 Provided with a means for photographing the image (4.9% ad valorem)

9011.20.80 Other (9% ad valorem)

9011.80.00 Other microscopes (8% ad valorem)

Compound optical microscopes for photomicrography, cinemicrography or microprojection are classifiable in one of two subheadings: subheading 9011.20.40 and 9011.20.80, HTSUS. Compound optical microscopes "provided with a means for photographing the image" are classifiable under subheading 9011.20.40, HTSUS, while those not so provided are classifiable under subheading 9011.20.80, HTSUS. Compound optical microscopes, other than stereomicroscopes (subheading 9011.10, HTSUS), that are not for photomicrography, cinemicrography or microprojection are - 4 -
classifiable under subheading 9011.80.00, HTSUS.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes require the presence of a binocular phototube to be capable of photomicrography. Thus, those that are imported with a binocular tube, rather than a binocular phototube, are classifiable under subheading 9011.80.00, HTSUS, as they are not "for photomicrography." The Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes imported with binocular phototubes are "for photomicrography," and are classifiable under subheading 9011.20, HTSUS.

While the presence of a binocular phototube leads to the conclusion that a particular microscope is "for photomicrography" (subheading 9011.20, HTSUS), the absence of the binocular phototube does not necessarily mean that the device is classifiable under subheading 9011.80.00, HTSUS. The Axiovert 135 and 405 microscopes, for example, do not require the presence of a binocular phototube to be capable of photomicrography, as both contain a separate port to which a camera body, or specially designed microscope camera, may be attached. These microscopes, whether imported with a binocular phototube or binocular tube, are classifiable under subheading 9011.20, HTSUS.

After determining that a particular microscope is covered by subheading 9011.20, HTSUS, it is then necessary to consider whether that microscope is, at the time of importation, "provided with a means for photographing the image." See United States v. Hannevig, T.D. 38384, Michaelian & Kohlberg, Inc. v. United States, T.D. 47554. If so, the microscope is classifiable under subheading 9011.20.40, HTSUS. If not, it is classifiable under subheading 9011.20.80, HTSUS.

Counsel for the protestant argues that the Axioskop H DIC, when imported with a binocular phototube, and other similarly configured microscopes, have been provided with a means for photographing an image. As imported, counsel contends, the microscopes are capable of photographing an image, "the only items lacking are the film holder [camera body] and photographic film." Counsel states that, by its express terms, subheading 9011.20.40, HTSUS, does not require a camera to be attached to, or imported with, the microscope, for it to be classified as one, "provided with a means for photographing the image."

It is Customs position that while subheading 9011.20.40, HTSUS, does not expressly require the presence of a camera or camera body, a microscope that cannot, effectively, take a picture without the use of a camera body and is imported without the camera body, is not "provided with a means for photographing the image." This position is derived from the Harmonized Commodity Description and Coding System Explanatory Note to heading 9011, HTSUS, and the text of subheading 9011.20.40, HTSUS. - 5 -

EN 90.11, pg. 1476, describes the microscopes for photomicrography and microscopes for cinephotomicrography of heading 9011, HTSUS, as follows:

In addition to the visual observation of the specimen, these also permit the photographic recording of magnified images. They may be composed either of a microscope permanently incorporating a photographic or cinematographic camera (usually specially designed for this purpose), or of a conventional microscope to which a conventional photographic or cinematographic camera can be temporarily fixed by means of a simple attachment.

EN 90.11 describes two types of microscopes for photomicrography: (1) a microscope permanently incorporating a photographic camera; or (2) a microscope to which a conventional photographic camera can be temporarily fixed by means of a simple attachment. These microscopes are classifiable under subheading 9011.20, HTSUS.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes, imported with the binocular phototube, and the Axiovert 135 and 405 microscopes, are combinations of the two types described in EN 90.11. While they do not permanently incorporate a photographic camera, both incorporate the necessary, internal photographic optics. They are used primarily in conjunction with a conventional photographic camera body, or specially designed microscope camera. Thus, as stated above, the Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes, with binocular phototube, and the Axiovert 135 and 405 microscopes are classifiable under subheading 9011.20, HTSUS.

Returning to the examples found in EN 90.11, a microscope that, at the time of importation, permanently incorporates a photographic camera is "provided with a means for photographing the image." Similarly, a microscope that is imported with a photographic camera (and any necessary attachments) is also "provided with a means." Thus, both of these examples would be classified under subheading 9011.20.40, HTSUS. However, a microscope imported with the attachments necessary to affix a photographic camera, but without the camera, while still a microscope for photomicrography, is not "provided with a means." This microscope cannot be classified under subheading 9011.20.40, HTSUS, and is classifiable under subheading 9011.20.80, HTSUS.

Similarly, it is our position that microscopes imported with all internal photographic optics necessary for photographing an image, but without a camera body or specially designed microscope camera, is not "provided with a means for photographing the image," and cannot be classified under subheading 9011.20.40, HTSUS. This position was reflected in HQ 085754 and HQ 088121. - 6 -

In HQ 085754, dated December 26, 1994, Customs considered the classification of three microscopes, the JENA LABOVAL 4 transmitted light microscope, JENA GSM stereomicroscope and JENA GSZ stereomicroscope. The GSM and GSZ stereomicroscopes were classified under subheading 9011.10.80, HTSUS, which provides for other stereoscopic microscopes, while the LABOVAL 4 transmitted light microscope was classified under subheading 9011.20.80, HTSUS, which, as stated above, provides for other microscopes for photomicrography.

Counsel for the protestant states that HQ 085754 cites facts which are in error, and should not be applied to the microscopes in question. The errors, according to counsel, are as follows: (1) the ruling states that the LABOVAL 4, which is a transmitted light microscope, is also "a type of reflected light microscope," when the microscope is simply a transmitted light microscope; (2) the ruling states that stereomicroscopes, such as the GSM and GSZ, are "more sophisticated optical microscope[s]," when stereomicroscopes are not necessarily more sophisticated; (3) the ruling states that the three microscopes have binocular phototubes ("trinocular eyepieces"), when only the LABOVAL 4 could be imported with the binocular phototubes; and (4) the ruling states that the microscopes only need a t-tube adapter and a T-mount ring to attach a 35 mm camera, when the microscopes often require various intermediate pieces, usually containing optical elements beyond the binocular phototube before a camera body can be attached.

With regard to HQ 085754, it is our opinion that any factual discrepancies that may be contained in the ruling are inadvertent and relatively insignificant, and, more importantly, did not affect the classification of the three microscopes in question. The LABOVAL 4 is a transmitted light microscope imported with binocular phototubes and various intermediate elements, but without a camera body. It is therefore classifiable under subheading 9011.20.80, HTSUS, as it is a microscope for photomicrography that is not "provided with a means for photographing the image." The GSM and GSZ stereomicroscopes, whether more or less sophisticated optical microscopes, cannot be fitted with binocular phototubes, and are therefore classifiable under subheading 9011.10.80, HTSUS, as stereoscopic microscopes that are not "provided with a means."

Similarly, in HQ 088121, dated February 26, 1991, compound optical microscopes incorporating a vertical viewing tube, which facilitated the mounting of a camera for photomicrography, were classified under subheading 9011.20.80, HTSUS, as the cameras were not a part of the importation. In HQ 088121, we reiterated our holding in HQ 085754 that "a compound optical microscope capable of photomicrography, but which was imported without the device for photographing an image" cannot be classified under subheading 9011.20.40, HTSUS. HQ 085754 and HQ 088121 reflect our current position regarding the classification of microscopes under heading 9011, HTSUS. - 7 -

Counsel for the protestant argues that the ENs to headings 9006 (photographic cameras) and 9007 (cinematographic cameras), HTSUS, support his position that subheading 9011.20.40, HTSUS, does not require a camera to be attached to, or imported with, the microscope for it to be classified as one, "provided with a means for photographing the image."

EN 90.06, pg. 1468, states that heading 9006, HTSUS, "does not apply to apparatus consisting of an instrument equipped to record images by photographic means, but essentially designed for some other purpose, e.g., a telescope, microscope, spectrograph, stroboscope." EN 90.07, pg. 1469, states that this portion of EN 90.06 applies to the cinematographic cameras of heading 9007, HTSUS. Thus, a microscope, such as one that permanently incorporates a photographic camera (EN 90.11) would not be classified as a photographic camera under heading 9006, HTSUS, but as a microscope for photomicrography under heading 9011, HTSUS.

EN 90.06, pg. 1468, then states that "[a] camera presented separately, however, even if it is a specialised part of another instrument (telescope, microscopes, spectrograph, photo-theodolite, stroboscope, etc.) is classified in this heading and not as a part of that instrument." Thus, the photographic camera that can be temporarily attached to a microscope, such as the one described in EN 90.11, when imported separately, would be classifiable under heading 9006, HTSUS, rather than 9011, HTSUS. See also EN 90.11, pg. 1476, which states that "[s]eparately presented photographic or cinematographic cameras for photomicrography or cinephotomicrography are excluded (heading 90.06 or 90.07 respectively) [emphasis in original]."

Counsel states that the clear impact of EN 90.06 and EN 90.07 is that "microscopes themselves are recognized as being internally equipped for, and capable of, photography or cinematography and that, but for the clear direction of the Notes, those microscopes might otherwise be classifiable as 'cameras' under headings 90.06 or 90.07." We disagree, and believe that EN 90.06 and EN 90.07 are in line with our interpretation of EN 90.11.

Finally, counsel for the protestant has consistently stated that the camera bodies used with the Axioskop H DIC and Axiovert 135 microscopes are not necessary to take photographs. The microscopes, when fitted with binocular phototubes and other intermediate elements, are technically capable of taking a picture without the camera body (by holding the film in hand or by taping it to the wall), or with the addition of an aluminum beverage can. However, when asked whether one would use these sophisticated microscopes without a camera body, counsel stated as follows:

In one foreseeable application, a laboratory might have many different types of microscopes (upright, inverted, fluorescence, stereo) close to hand to meet different - 8 -
needs. It is not uncommon for such laboratories to have all such scopes individually fitted with binocular phototubes, but arranged to share a common film or video camera. The camera attachment is moved from one microscope to another [underlining added].

Thus, all of the microscopes in this application would be provided with a camera body to photograph an image. The language of subheading 9011.20.40, HTSUS, does not mean "provided with a means" in the abstract, but actually "provided" and used in that manner. A microscope of subheading 9011.20.40, HTSUS, must be capable, upon importation, of photographing an image in the manner that it will photograph an image after importation in the United States. It seems incongruous to hold that a sophisticated, research-grade microscope is "provided with a means" because one can technically take a picture without a camera body (i.e., by holding the film in hand or with a tin can), when in fact, a camera body will be used.

In fact, in most instances, a specially designed microscope camera will be used. These specially designed cameras are generally used with research-grade microscopes because they provide consistent, quality results. Their benefits include a special exposure control system, special arrangements to ensure exact focus and less recoil than in a standard camera (recoil destroys sharpness, especially in a magnified picture).

The Axioskop H DIC and Axioskop HD DIC microscopes, when imported with binocular phototubes, and Axiovert 135 and 405 microscopes are provided with a means to accept a camera body or specially designed microscope camera, but are not provided with a means for photographing the image. Accordingly, these microscopes are classifiable under subheading 9011.20.80, HTSUS.

HOLDING:

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes, imported with binocular tubes, are classifiable under subheading 9011.80.00, HTSUS.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes, imported with binocular phototubes, and the Axiovert 135 and 405 microscopes, imported with binocular tubes or binocular phototubes, are classifiable under subheading 9011.20.80, HTSUS.

Accordingly, the protest should be GRANTED with regard to the Axioskop H DIC and Axioskop HD DIC microscopes, with binocular tubes, but DENIED with regard to the Axiovert 100 microscopes, with binocular tubes, and the Axioskop H DIC and Axioskop HD DIC microscopes, with binocular phototubes. The protest should also be DENIED with regard to the Axiovert 100 microscopes, with binocular phototubes, and the Axiovert 135 and 405 microscopes, with either - 9 -
binocular phototubes or binocular tubes, since the rate of duty under the classification indicated above is more than the liquidated rate.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office 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 the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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