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HQ 954855




December 7, 1994

CLA-2 CO:R:C:M 954855 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9011.10.80

District Director of Customs
300 S Ferry Street
Los Angeles, CA 90731

RE: Protest No. 2720-93-100562; surgical ophthalmic microscope; compound optical microscope; EN 90.11; heading 9018; GRI 3(a); HQs 085754, 088121, 954362, 956638

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 2720-93-100562, which concerns the classification of surgical ophthalmic microscopes under the Harmonized Tariff Schedule of the United States (HTSUS). The entries of the subject merchandise were liquidated on April 2 and 9, 1993. The protest was timely filed on May 10, 1993.

FACTS:

The subject merchandise, a EOS-900 ophthalmic microscope, is designed specifically for ophthalmology use. It is suitable for any type of ophthalmic microsurgery, but in most cases it is used for cataract surgery. The second greatest use would be for posterior vitrectomy. The microscope is attached to a mechanical arm which is anchored by an H-shaped base.

The ophthalmic microscope has the following capabilities: adjustable red reflex enhances depth of field; fully illuminated field of view plus spot illumination; exceptionally smooth moving 6-fold zoom; switchable co-axial to oblique illumination; self-checks all functions during start-up and continuously monitors operating status; offers memory homing to predetermined positions; allows sterile, fine adjustment for inclination movement of the microscope; restores previous illumination power for subsequent use; has video integration design to enable others to observe operation through another observation tube or by means of a video camera. The end-user may also purchase an adapter to allow for the mounting of cameras for photography.

The optics in the ophthalmic microscope is capable of the following functions: continuously adjustable fiber-optic cold light up to 140,000 lux; illumination intensity automatically adjusts to magnification; switchable UV-filter, blue filter, and retina protection diaphragm protects against light toxicity; light source regulation circuit limits illumination to safe intensity; and illumination fail-safe mechanism ensures operation of light source.

The merchandise was entered under subheading 9011.10.40, HTSUS, as compound optical microscopes, provided with a means for photographing the image. The entry was liquidated under subheading 9018.90.20, HTSUS, as other surgical instruments.

Classification of the merchandise under subheading 9018.50.00, HTSUS, as other ophthalmic instruments and appliances, and under 9011.10.80, as other stereoscopic compound optical microscopes, are also under consideration.

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. . .:

9018.50.00 Other ophthalmic instruments and appliances and parts and accessories thereof. . . .

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

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.

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 microscopes 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. Because the subject 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.

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 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 ophthalmic microscope is provided in heading 9011, HTSUS. It is classifiable under subheading 9011.10.80, HTSUS.

You should deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. 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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