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HQ 958579





February 17, 1996

CLA-2 RR:TC:MM 958579 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.50.00

Port Director
U.S. Customs Service
10 Causeway Street
Room 603
Boston, Massachusetts 02222-1059

RE: Protest 0401-95-100544; Specular Microscope; HQs 088231, 954855; heading 9011; EN 90.11; EN 90.18

Dear Port Director:

The following is our decision regarding Protest 0401-95-100544, which concerns the classification of a specular microscope under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered on September 20, 1994, and the entry was liquidated on June 9, 1995. The protest was timely filed on July 5, 1995.

FACTS:

The Konan Noncon Specular Microscope, which has a single stage of optics, is designed for eye examination and photography. It has an adjustable chin rest for the patient and a viewing screen for the doctor. Besides the built-in photographic capability (for photographing corneal endothelium), the microscope has a computerized system for analytical computations. The microscope enables a wide field photography and a contact scanning of the cone lens on the cornea. After screening with the non-contact microscope, more precise examination is possible.

The specular microscope was entered under subheading 9011.20.40, HTSUS, which provides for compound optical microscopes, for photomicrography, provided with a means for photographing the image. The microscope was classified upon liquidation - 2 -
under subheading 9018.50.00, HTSUS, which provides for other ophthalmic instruments and appliances.

ISSUE:

Whether the specular microscope is classifiable under subheading 9011.20.40, HTSUS, which provides for compound optical microscopes, for photomicrography, provided with a means for photographing the image, or under subheading 9018.50.00, HTSUS, which provides for other ophthalmic instruments and appliances.

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 Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The headings under consideration are as follows:

9011 Compound optical microscopes, including those for photomicrography, cinemacrography or microprojection . . .

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

EN 90.11, pg. 1475, states that "[w]hereas magnifiers of heading 90.13 [other optical instruments and appliances, not specified or included elsewhere in chapter 90] 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 (emphasis in original)." The ENs further states that a compound optical microscope generally includes "[a]n 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." See HQ 088231, dated March 8, 1991 (further defining the term "compound microscope").

In HQ 954855, dated December 7, 1994, we classified the EOS-900 ophthalmic microscope, a surgical microscope, under heading 9011, HTSUS, rather than heading 9018, HTSUS. The EOS-900 was classified as a compound optical microscope, "because it has a second stage of magnification . . . ." Conversely, the Specular Microscope has a single objective lens, and therefore, provides only one stage of magnification. Unlike the EOS-900, the Specular Microscope is not a "compound optical microscope," and cannot be classified under heading 9011, HTSUS.

EN 90.18, pg. 1487, states that heading 9018, HTSUS, "covers a very wide range of instruments and appliances, which, in the vast majority of cases, are used only in professional practice . . ., either to make a diagnosis, to prevent or treat an illness or to operate, etc." EN 90.18, pg. 1489, also states that the heading includes "ophthalmic instruments," which encompasses ophthalmic surgical and diagnostic instruments, and orthoptic or sight-testing apparatus. The Specular Microscope is designed for eye examination and photography. The microscope enables photography and scanning of the cornea's cone lens. It is an ophthalmic, diagnostic instrument that is covered by heading 9018, HTSUS. Specifically, the microscope is classifiable under subheading 9018.50.00, HTSUS, which provides for other ophthalmic instruments and appliances.
HOLDING:

The specular microscopes are classifiable under subheading 9018.50.00, HTSUS.

The protest should be DENIED. 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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