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HQ 954662




December 7, 1994

CLA-2 CO:R:C:M 954662 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9011.90.00

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

RE: Protest 1001-92-107735; surgical microscope; compound optical microscope; parts and accessories; ENs 90.11 and 90.18; heading 9018; chapter 90, legal note 2; HQs 954362 and 956638

Dear Regional Commissioner:

The following is our decision regarding the request for further review of Protest 1001-92-107735, which concerns the classification of surgical microscopes under the Harmonized Tariff Schedule of the United States (HTSUS). The entry of the subject merchandise was liquidated on October 2, 1992. The protest was timely filed on December 31, 1992.

FACTS:

The subject merchandise consists of the following parts for the Leica Wild M695 surgical microscope: optics carrier, swing-arm and weights, footswitches, clip-on handles, mounting brackets, tubes for second observer, stereo attachment for second observer, inclined binocular tubes, rotable rings, inclinable carrier rods, base with column, and horizontal arm with clamping block for base. The microscope is attached to a mechanical arm which is anchored by an H-shaped base floor stand or ceiling mount with a control unit.

The merchandise was entered under subheading 9011.90.00, HTSUS, as parts and accessories of compound optical microscopes. The entry was liquidated under subheading 9018.90.20, HTSUS, as parts of other optical instruments.

The subheadings under consideration are as follows:

9011: Compound optical microscopes, including those for photomicrography, cinemicrography or microprojection; parts and accessories thereof:

9011.90.00 Parts and accessories. . . .

Goods classifiable under this provision have a general, column one rate of duty of 7.2 percent ad valorem.

9018 Instruments and appliances used in medical, surgical . . . sciences, including scintigraphic apparatus, . . .; parts and accessories thereof:

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

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

ISSUE:

Whether the parts and accessories of the surgical microscope are classifiable as parts of compound optical microscopes or parts of other optical instruments used in surgical science 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.

Because the microscopes are designed for use in microsurgery, classification of the microscopes under heading 9018, HTSUS, as appliances used in surgical sciences, was considered based upon HQ 954362, dated June 30, 1993. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) 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). 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.

If the subject merchandise meets the definition of the microscopes covered under heading 9011, HTSUS, then classification under heading 9018, HTSUS, is precluded. 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. . . .

The subject microscope meets 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. Because the merchandise is a compound optical microscope under heading 9011, HTSUS, classification under heading 9018, HTSUS, is precluded. In HQ 956638, dated November 21, 1994, Customs learned that the surgical microscopes did meet the definition for compound optical microscopes as applied above and revoked HQ 954362. See Customs Bulletin, Volume 28, Number 49, published on December 7, 1994.

Classification of parts and accessories are subject to Chapter 90, Legal Note 2, which provides in pertinent part:

Parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than headings 8485, 8548 or 9033) are in all cases to be classified in their respective headings;

(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument, or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind. . . .

According to the information provided, the parts and accessories subject to this protest, are suitable for use solely or principally with the compound optical microscopes of heading 9011, HTSUS. Based upon Legal Note 2(b) to Chapter 90, we find that the subject parts and accessories are provided in heading 9011, HTSUS.

HOLDING:

Based upon Legal Note 2(b) to Chapter 90, the subject parts and accessories for compound optical microscopes are provided in heading 9011, HTSUS. They are classifiable under subheading 9011.90.00, HTSUS.

The protest should be GRANTED. 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 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
Commercial Rulings Division

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