CLA-2 CO:R:C:M 088231 CMS
9031.40.00
District Director of Customs
Patrick V. McNamara Bldg.
477 Michigan Avenue
Detroit, MI 48266
RE: Application For Further Review Of Protest No. 3801-9-002721
(October 19, 1989); Scanning Laser Microscope; Optical
Microscopes; Measuring, Checking Instruments And Appliances
Dear Sir:
This protest was filed against your liquidations dated
September 1, 1989, and September 8, 1989, in which certain
scanning laser microscopes were classified in 9031.40.00, HTSUSA.
FACTS:
The merchandise consists of the WSI 1000R Scanning Laser
Microscope. The microscope is essentially comprised of a laser,
photodetector, data analysis unit, monitors and video camera.
The product projects a laser beam onto the specimen through a
series of lenses. The data resulting from the interaction
between the laser and the specimen is collected by the
photodetector and processed by the data analysis unit. The
resulting images appear on the video monitors. Images of
specimens recorded with the video camera can also be displayed
on the monitors.
The product brochure states that the product is used for
semiconductor analysis, in biological studies and in other
applications including forensic science investigations.
ISSUE:
Is the merchandise classified in Heading 9012 as microscopes
other than optical microscopes, or in Heading 9031 as measuring
or checking instruments, appliances and machines, not specified
or included elsewhere?
-2-
LAW AND ANALYSIS:
Heading 9012 in part describes microscopes other than
optical microscopes.
Optical microscopes use optical elements to form and
magnify images of the specimen. Van Nostrand's Scientific
Encyclopedia, 7th Ed. (1989), p. 1845, provides:
Optical Microscope
A microscope usually refers to a compound microscope.
The compound microscope forms the image by a two-stage
process and consists of an objective and an ocular. A
simple microscope uses only objectives to form an image...
McCrone, Walter C., Polarized Light Microscopy, Ann Arbor Science
Publishers Inc. (1979), p. 15, provides:
Objectives are the most important optical component
of the compound microscope. They form the intermediate
image of the object, which is subsequently examined
with the ocular.
The scanning laser microscope under consideration is neither
a compound nor a simple optical microscope. It does not use
microscope objectives to form and magnify images of the specimen.
The images are formed when the collected data is processed
electronically and displayed on a monitor. Although the
microscope has optical elements, these elements are used to
focus the laser beam onto the specimen. They are not the image
forming optical elements which are the principal and most
important optical components of "optical microscopes". In other
instruments optical elements which are used to focus light may be
principal optical elements.
Although the scanning laser microscope projects a laser
beam and not a beam of electrons, its method of forming images is
much more similar to that of an electron scanning microscope than
an optical microscope. Van Nostrand's Scientific Encyclopedia,
supra, p. 1043, provides that in an electron microscope the
specimen "...emits secondary electrons that are generated by the
action of the primary beam. These secondary electrons are
collected and amplified by the instrument... The picture is
displayed on a cathode ray tube from which it can be
photographed."
-3-
The Explanatory Notes to Heading 9012, p. 1477, provide that
Heading 9012 covers electron microscopes including scanning
electron microscopes.
The Explanatory Notes to Heading 9012, p. 1477, also provide
that "[e]lectron microscopes differ from optical microscopes in
that they use a beam of electrons instead of light rays."
Although the scanning laser microscope uses a laser beam and not
a beam of electrons, it does not pass light through an objective
to form an image like optical microscopes. The Explanatory Notes
to Heading 9012 provide that certain microscopes which collect
data from optical rays and process them into images are Heading
9012 microscopes. For example, The Explanatory Notes at p. 1477,
provide that in electron scanning microscopes:
[i]nformation is obtained by measuring, for example,
the electrons transmitted, the secondary electrons
emitted, or the optical rays. The result may then be
displayed on a monitor screen which can be incorporated
in the microscope.
(emphasis added)
The scanning laser microscope under consideration is a
microscope other than an optical microscope. The product is
described by Heading 9012. The video camera component of the
product is subsidiary to the product's function as a microscope.
The microscope may be used to measure or check certain qualities
of the specimen but it is not classified in Heading 9031 which
describes measuring or checking instruments not specified or
included elsewhere. The merchandise is specified by and included
in Heading 9012 and is classified in 9012.10.00, HTSUSA.
HOLDING:
The WSI 1000R Scanning Laser Microscope is classified as a
microscope other than an optical microscope, in 9012.10.00,
HTSUSA. The Protest should be granted. A copy of this decision
should be attached to the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division