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HQ 956638





December 7, 1994

CLA-2 CO:R:C:M 956638 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9011.10.80

Mr. Chris Wallace
Jagro Air Services, Inc.
Airport Industrial Office Park
145th Avenue & Hook Creek Boulevard
Building #C-5D
Valley Stream, NY 11581

RE: Moeller Microsurgical Surgical Microscope; Compound Optical Microscope; EN 90.11; heading 9018; HQs 085754, 088121, 954640; HQ 954362, Revoked

Dear Mr. Wallace:

This is in reference to HQ 954362, issued to you on June 30, 1993, on behalf of Moeller Microsurgical, Inc., in which the tariff classification of a surgical microscope was determined under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993)(hereinafter, "section 625"), notice of the proposed revocation of HQ 954362 was published on October 19, 1994, in the Customs Bulletin, Volume 28, Number 42. The only comment received in response to the notice disagreed with the proposal, but did not set forth a rationale for the position upon which we can comment. Our decision in this matter is set forth below.

FACTS:

The subject merchandise consists of a binocular surgical microscope, used by surgeons when operating on a very small area of the body. The microscope contains double eyepieces and objectives with independent light paths, and thus creates a three-dimensional image. The merchandise possesses a microscope arm, with a light source built into the arm. The microscope may be mounted to a ceiling or to a floor stand, and the arm has free-floating movement capability in all directions.

The subheadings under consideration are as follows:

9011.10: Compound optical microscopes, including those for photomicrography, cinemicrography or micro projection. . . : [s]tereoscopic microscopes:

9011.10.40 Provided with the means for photographing the image. . . .

Goods classifiable under this provision have a general, column one rate of duty of 4.9 percent ad valorem.

9011.10.80 Other. . . .

Goods classifiable under this provision have a general, column one rate of duty of 9 percent ad valorem.

9018 Instruments and appliances used in medical, surgical . . . sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments. . .:

9018.90.20 Other instruments and appliances and appliances and parts and accessories thereof: [o]ptical instruments and appliances. . .: [o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 10.0 percent ad valorem.

ISSUE:

Whether the ophthalmic surgical microscope is classifiable as a compound optical microscope or as a surgical microscope under the HTSUS?

LAW AND ANALYSIS:

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

In HQ 954362, dated June 30, 1993, Customs classified the surgical microscopes, as other optical instruments used in surgical science under subheading 9018.90.20, HTSUS. Customs based this decision upon the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to heading 9011, HTSUS. The 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 indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). In part, EN 90.11, pages 1475-1476, states that:

. . . the compound optical microscope of this heading has a second stage of magnification for the observation of an already magnified image of the object.

A compound optical microscope normally comprises:

(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 the monocular or binocular type), and an objective-holder (generally revolving).

. . . This heading covers microscopes as used by amateurs, teachers, etc., and those for industrial use or for research laboratories. . . .

After citing EN 90.11, Customs determined that the subject microscope did not meet the definition because: it did not have a second stage of magnification; it was used to perform microsurgery on a human body, and not used to study and observe objects for laboratory research or industrial purposes.

Customs has since learned that the surgical microscope does meet the definition for compound optical microscopes for heading 9011, HTSUS, because it has a second stage of magnification for the observation of an already magnified image of an object. EN 90.18, pages 1487-1488, states in pertinent part:

This heading covers a very wide range of instruments and appliances which, in the vast majority of cases, are used only in professional practice (e.g., by doctors, surgeons, dentists, veterinary surgeons, midwives), either to make a diagnosis, to prevent or treat an illness or to operate, etc. . . .

The heading does not cover:
(ij) Microscopes, etc., of heading 90.11 or 90.12.

Because the subject merchandise meets the definition of compound optical microscopes covered under heading 9011, HTSUS, classification under heading 9018, HTSUS, is precluded.

The only remaining issue is whether the subject microscopes are provided with the means for photographing the image. Customs has consistently determined that microscopes capable of photomicrography, but which were imported without the device for photographing an image, cannot be considered to be "provided with a means for photographing the image". See HQ 954640, dated October 25, 1994; HQ 088121, dated February 26, 1991; HQ 085754, dated December 26, 1989. According to the invoices, the subject merchandise was imported without the means for photographing the images. Therefore, we find that the surgical microscopes are to be classified as compound optical microscopes, provided without the means for photographing the image, under subheading 9011.10.80, HTSUS.

HOLDING:

Under the authority of GRI 1, the surgical microscope is provided in heading 9011, HTSUS. It is classifiable under subheading 9011.10.80, HTSUS, which provides for: "[c]ompound optical microscopes, including those for photomicrography, cinemicrography or micro projection. . . : [s]tereoscopic microscopes: [o]ther. . . ." Goods classifiable under this provision have a general, column one rate of duty of 9 percent ad valorem.

HQ 954362, dated June 30, 1993, is revoked. In accordance with section 625, this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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