CLA-2 CO:R:C:M 954640 LTO
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945
RE: Protest 1001-93-101806; Axioskop upright microscopes; Axiovert
inverted microscopes; binocular phototube; binocular tube;
HQs 085754, 088121; "provided with a means for photographing
the image;" subheading 9011.20.40; U.S. v. Hannevig;
Michaelian & Kohlberg, Inc. v. U.S.
Dear Regional Commissioner:
The following is our decision regarding Protest 1001-93-
101806, which concerns the classification of Axioskop 50 upright
microscopes (Axioskop H DIC and Axioskop HD DIC) and Axiovert
inverted microscopes (Axiovert 100, 135, 405) under the Harmonized
Tariff Schedule of the United States (HTSUS). The subject
merchandise was entered on September 30, 1992, and the entry was
liquidated on February 5, 1993. The protest was timely filed on
April 1, 1993.
FACTS:
The articles in question are Axioskop 50 upright microscopes
(Axioskop H DIC and Axioskop HD DIC) and Axiovert inverted
microscopes (Axiovert 100, 135, 405). The microscopes are imported
with either a binocular tube or binocular phototube. A binocular
tube consists of two parallel eyepieces, while a binocular
phototube consists of two parallel eyepieces and a separate
vertical port to which a camera body, or specially designed
microscope camera, may be attached.
The Axioskop H DIC, Axioskop HD DIC and Axiovert 100
- 2 -
microscopes, when imported with a binocular tube, are not capable
of photomicrography, as the binocular phototube is necessary for
documentation. When imported with the binocular phototube, the
Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes
incorporate all internal photographic optical elements necessary
for documentation at the time of importation.
On the other hand, the Axiovert 135 and 405 microscopes
incorporate all necessary internal photographic optics, as well as,
a separate port to which a camera body, or specially designed
microscope camera, may be attached (some models have additional
ports for video, etc.). While they are generally imported with a
binocular phototube, one is not necessary for documentation.
Counsel for the protestant states that the practice of
importing microscopes configured with internal photographic optics
is the current norm. Previously, a camera containing all the
necessary optical elements would be mechanically affixed to a
standard microscope that had no internal photographic optics.
The Axioskop H DIC and Axioskop HD DIC microscopes can be used
with any of four different binocular phototubes, selection of which
is dependent upon the amount of light desired for photography or
for observation. A prism determines which exit port (either
observation or for photography) gets what percentage of light. The
binocular phototubes also have options for light splitting, and are
application-driven. The microscopes are imported with other
intermediate elements, including tubes with optics, and sometimes
with the mechanical devices necessary to attach a camera body or
specially designed microscope camera.
The Axioskop HD DIC microscope differs from the Axioskop H
DIC, in that the former is configured for "dark field" (hence the
"HD") applications where the specimen appears white on a black
background, so that the user can see defects in that specimen.
Because the Axioskop HD DIC microscope is designed for material
science appliances, where the specimen is generally opaque (light
cannot travel through it), the light comes from above the specimen.
On the other hand, in a microscope configured for biological
applications, where the specimen is generally translucent, the
light comes from below the specimen. The primary physical
difference between the two Axioskop microscopes is that the
Axioskop HD DIC microscope uses a special, extra wide objective
that screws into its nosepiece.
The Axiovert 100, 135 and 405 are inverted microscopes. In
inverted microscopes, light travels from above the specimen in "U"-
shape, below, and then up through, the specimen.
All of the microscopes were entered as compound optical
microscopes, for photomicrography, provided with a means for
photographing the image, under subheading 9011.20.40, HTSUS. The - 3 -
Axioskop H DIC and Axioskop HD DIC microscopes were classified upon
liquidation as other compound optical microscopes, for
photomicrography, under subheading 9011.20.80, HTSUS, while the
Axiovert 100, 135 and 405 microscopes were classified as other
compound optical microscopes, under subheading 9011.80.00, HTSUS.
ISSUE:
Whether microscopes imported without camera bodies, but with
all internal photographic optics necessary for photographing an
image, can be classified as other compound optical microscopes, for
photomicrography, provided with a means for photographing the
image, under subheading 9011.20.40, HTSUS.
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 Axioskop H DIC, Axioskop HD DIC, and Axiovert 100, 135 and
405 microscopes are classifiable under heading 9011, HTSUS, which
provides for "[c]ompound optical microscopes, including those for
photomicrography, cinemicrography or microprojection; parts and
accessories thereof." However, the following subheadings are at
issue:
9011.20 Other microscopes, for photomicrography,
cinemicrography or microprojection:
9011.20.40 Provided with a means for photographing
the image (4.9% ad valorem)
* * * * * * * * * * * * *
9011.20.80 Other (9% ad valorem)
* * * * * * * * * * * * *
9011.80.00 Other microscopes (8% ad valorem)
Compound optical microscopes for photomicrography,
cinemicrography or microprojection are classifiable in one of two
subheadings: subheading 9011.20.40 and 9011.20.80, HTSUS.
Compound optical microscopes "provided with a means for
photographing the image" are classifiable under subheading
9011.20.40, HTSUS, while those not so provided are classifiable
under subheading 9011.20.80, HTSUS. Compound optical microscopes,
other than stereomicroscopes (subheading 9011.10, HTSUS), that are
not for photomicrography, cinemicrography or microprojection are - 4 -
classifiable under subheading 9011.80.00, HTSUS.
The Axioskop H DIC, Axioskop HD DIC and Axiovert 100
microscopes require the presence of a binocular phototube to be
capable of photomicrography. Thus, those that are imported with a
binocular tube, rather than a binocular phototube, are classifiable
under subheading 9011.80.00, HTSUS, as they are not "for
photomicrography." The Axioskop H DIC, Axioskop HD DIC and
Axiovert 100 microscopes imported with binocular phototubes are
"for photomicrography," and are classifiable under subheading
9011.20, HTSUS.
While the presence of a binocular phototube leads to the
conclusion that a particular microscope is "for photomicrography"
(subheading 9011.20, HTSUS), the absence of the binocular phototube
does not necessarily mean that the device is classifiable under
subheading 9011.80.00, HTSUS. The Axiovert 135 and 405
microscopes, for example, do not require the presence of a
binocular phototube to be capable of photomicrography, as both
contain a separate port to which a camera body, or specially
designed microscope camera, may be attached. These microscopes,
whether imported with a binocular phototube or binocular tube, are
classifiable under subheading 9011.20, HTSUS.
After determining that a particular microscope is covered by
subheading 9011.20, HTSUS, it is then necessary to consider whether
that microscope is, at the time of importation, "provided with a
means for photographing the image." See United States v. Hannevig,
T.D. 38384, Michaelian & Kohlberg, Inc. v. United States, T.D.
47554. If so, the microscope is classifiable under subheading
9011.20.40, HTSUS. If not, it is classifiable under subheading
9011.20.80, HTSUS.
Counsel for the protestant argues that the Axioskop H DIC,
when imported with a binocular phototube, and other similarly
configured microscopes, have been provided with a means for
photographing an image. As imported, counsel contends, the
microscopes are capable of photographing an image, "the only items
lacking are the film holder [camera body] and photographic film."
Counsel states that, by its express terms, subheading 9011.20.40,
HTSUS, does not require a camera to be attached to, or imported
with, the microscope, for it to be classified as one, "provided
with a means for photographing the image."
It is Customs position that while subheading 9011.20.40,
HTSUS, does not expressly require the presence of a camera or
camera body, a microscope that cannot, effectively, take a picture
without the use of a camera body and is imported without the camera
body, is not "provided with a means for photographing the image."
This position is derived from the Harmonized Commodity Description
and Coding System Explanatory Note to heading 9011, HTSUS, and the
text of subheading 9011.20.40, HTSUS. - 5 -
EN 90.11, pg. 1476, describes the microscopes for
photomicrography and microscopes for cinephotomicrography of
heading 9011, HTSUS, as follows:
In addition to the visual observation of the specimen,
these also permit the photographic recording of
magnified images. They may be composed either of a
microscope permanently incorporating a photographic or
cinematographic camera (usually specially designed for
this purpose), or of a conventional microscope to
which a conventional photographic or cinematographic
camera can be temporarily fixed by means of a simple
attachment.
EN 90.11 describes two types of microscopes for
photomicrography: (1) a microscope permanently incorporating a
photographic camera; or (2) a microscope to which a conventional
photographic camera can be temporarily fixed by means of a simple
attachment. These microscopes are classifiable under subheading
9011.20, HTSUS.
The Axioskop H DIC, Axioskop HD DIC and Axiovert 100
microscopes, imported with the binocular phototube, and the
Axiovert 135 and 405 microscopes, are combinations of the two types
described in EN 90.11. While they do not permanently incorporate
a photographic camera, both incorporate the necessary, internal
photographic optics. They are used primarily in conjunction with
a conventional photographic camera body, or specially designed
microscope camera. Thus, as stated above, the Axioskop H DIC,
Axioskop HD DIC and Axiovert 100 microscopes, with binocular
phototube, and the Axiovert 135 and 405 microscopes are
classifiable under subheading 9011.20, HTSUS.
Returning to the examples found in EN 90.11, a microscope
that, at the time of importation, permanently incorporates a
photographic camera is "provided with a means for photographing the
image." Similarly, a microscope that is imported with a
photographic camera (and any necessary attachments) is also
"provided with a means." Thus, both of these examples would be
classified under subheading 9011.20.40, HTSUS. However, a
microscope imported with the attachments necessary to affix a
photographic camera, but without the camera, while still a
microscope for photomicrography, is not "provided with a means."
This microscope cannot be classified under subheading 9011.20.40,
HTSUS, and is classifiable under subheading 9011.20.80, HTSUS.
Similarly, it is our position that microscopes imported with
all internal photographic optics necessary for photographing an
image, but without a camera body or specially designed microscope
camera, is not "provided with a means for photographing the image,"
and cannot be classified under subheading 9011.20.40, HTSUS. This
position was reflected in HQ 085754 and HQ 088121. - 6 -
In HQ 085754, dated December 26, 1994, Customs considered the
classification of three microscopes, the JENA LABOVAL 4 transmitted
light microscope, JENA GSM stereomicroscope and JENA GSZ
stereomicroscope. The GSM and GSZ stereomicroscopes were
classified under subheading 9011.10.80, HTSUS, which provides for
other stereoscopic microscopes, while the LABOVAL 4 transmitted
light microscope was classified under subheading 9011.20.80, HTSUS,
which, as stated above, provides for other microscopes for
photomicrography.
Counsel for the protestant states that HQ 085754 cites facts
which are in error, and should not be applied to the microscopes in
question. The errors, according to counsel, are as follows: (1)
the ruling states that the LABOVAL 4, which is a transmitted light
microscope, is also "a type of reflected light microscope," when
the microscope is simply a transmitted light microscope; (2) the
ruling states that stereomicroscopes, such as the GSM and GSZ, are
"more sophisticated optical microscope[s]," when stereomicroscopes
are not necessarily more sophisticated; (3) the ruling states that
the three microscopes have binocular phototubes ("trinocular
eyepieces"), when only the LABOVAL 4 could be imported with the
binocular phototubes; and (4) the ruling states that the
microscopes only need a t-tube adapter and a T-mount ring to attach
a 35 mm camera, when the microscopes often require various
intermediate pieces, usually containing optical elements beyond the
binocular phototube before a camera body can be attached.
With regard to HQ 085754, it is our opinion that any factual
discrepancies that may be contained in the ruling are inadvertent
and relatively insignificant, and, more importantly, did not affect
the classification of the three microscopes in question. The
LABOVAL 4 is a transmitted light microscope imported with binocular
phototubes and various intermediate elements, but without a camera
body. It is therefore classifiable under subheading 9011.20.80,
HTSUS, as it is a microscope for photomicrography that is not
"provided with a means for photographing the image." The GSM and
GSZ stereomicroscopes, whether more or less sophisticated optical
microscopes, cannot be fitted with binocular phototubes, and are
therefore classifiable under subheading 9011.10.80, HTSUS, as
stereoscopic microscopes that are not "provided with a means."
Similarly, in HQ 088121, dated February 26, 1991, compound
optical microscopes incorporating a vertical viewing tube, which
facilitated the mounting of a camera for photomicrography, were
classified under subheading 9011.20.80, HTSUS, as the cameras were
not a part of the importation. In HQ 088121, we reiterated our
holding in HQ 085754 that "a compound optical microscope capable of
photomicrography, but which was imported without the device for
photographing an image" cannot be classified under subheading
9011.20.40, HTSUS. HQ 085754 and HQ 088121 reflect our current
position regarding the classification of microscopes under heading
9011, HTSUS. - 7 -
Counsel for the protestant argues that the ENs to headings
9006 (photographic cameras) and 9007 (cinematographic cameras),
HTSUS, support his position that subheading 9011.20.40, HTSUS, does
not require a camera to be attached to, or imported with, the
microscope for it to be classified as one, "provided with a means
for photographing the image."
EN 90.06, pg. 1468, states that heading 9006, HTSUS, "does not
apply to apparatus consisting of an instrument equipped to record
images by photographic means, but essentially designed for some
other purpose, e.g., a telescope, microscope, spectrograph,
stroboscope." EN 90.07, pg. 1469, states that this portion of EN
90.06 applies to the cinematographic cameras of heading 9007,
HTSUS. Thus, a microscope, such as one that permanently
incorporates a photographic camera (EN 90.11) would not be
classified as a photographic camera under heading 9006, HTSUS, but
as a microscope for photomicrography under heading 9011, HTSUS.
EN 90.06, pg. 1468, then states that "[a] camera presented
separately, however, even if it is a specialised part of another
instrument (telescope, microscopes, spectrograph, photo-theodolite,
stroboscope, etc.) is classified in this heading and not as a part
of that instrument." Thus, the photographic camera that can be
temporarily attached to a microscope, such as the one described in
EN 90.11, when imported separately, would be classifiable under
heading 9006, HTSUS, rather than 9011, HTSUS. See also EN 90.11,
pg. 1476, which states that "[s]eparately presented photographic or
cinematographic cameras for photomicrography or
cinephotomicrography are excluded (heading 90.06 or 90.07
respectively) [emphasis in original]."
Counsel states that the clear impact of EN 90.06 and EN 90.07
is that "microscopes themselves are recognized as being internally
equipped for, and capable of, photography or cinematography and
that, but for the clear direction of the Notes, those microscopes
might otherwise be classifiable as 'cameras' under headings 90.06
or 90.07." We disagree, and believe that EN 90.06 and EN 90.07 are
in line with our interpretation of EN 90.11.
Finally, counsel for the protestant has consistently stated
that the camera bodies used with the Axioskop H DIC and Axiovert
135 microscopes are not necessary to take photographs. The
microscopes, when fitted with binocular phototubes and other
intermediate elements, are technically capable of taking a picture
without the camera body (by holding the film in hand or by taping
it to the wall), or with the addition of an aluminum beverage can.
However, when asked whether one would use these sophisticated
microscopes without a camera body, counsel stated as follows:
In one foreseeable application, a laboratory might have
many different types of microscopes (upright, inverted,
fluorescence, stereo) close to hand to meet different - 8 -
needs. It is not uncommon for such laboratories to have
all such scopes individually fitted with binocular
phototubes, but arranged to share a common film or video
camera. The camera attachment is moved from one
microscope to another [underlining added].
Thus, all of the microscopes in this application would be
provided with a camera body to photograph an image. The language
of subheading 9011.20.40, HTSUS, does not mean "provided with a
means" in the abstract, but actually "provided" and used in that
manner. A microscope of subheading 9011.20.40, HTSUS, must be
capable, upon importation, of photographing an image in the manner
that it will photograph an image after importation in the United
States. It seems incongruous to hold that a sophisticated,
research-grade microscope is "provided with a means" because one
can technically take a picture without a camera body (i.e., by
holding the film in hand or with a tin can), when in fact, a camera
body will be used.
In fact, in most instances, a specially designed microscope
camera will be used. These specially designed cameras are
generally used with research-grade microscopes because they provide
consistent, quality results. Their benefits include a special
exposure control system, special arrangements to ensure exact focus
and less recoil than in a standard camera (recoil destroys
sharpness, especially in a magnified picture).
The Axioskop H DIC and Axioskop HD DIC microscopes, when
imported with binocular phototubes, and Axiovert 135 and 405
microscopes are provided with a means to accept a camera body or
specially designed microscope camera, but are not provided with a
means for photographing the image. Accordingly, these microscopes
are classifiable under subheading 9011.20.80, HTSUS.
HOLDING:
The Axioskop H DIC, Axioskop HD DIC and Axiovert 100
microscopes, imported with binocular tubes, are classifiable under
subheading 9011.80.00, HTSUS.
The Axioskop H DIC, Axioskop HD DIC and Axiovert 100
microscopes, imported with binocular phototubes, and the Axiovert
135 and 405 microscopes, imported with binocular tubes or binocular
phototubes, are classifiable under subheading 9011.20.80, HTSUS.
Accordingly, the protest should be GRANTED with regard to the
Axioskop H DIC and Axioskop HD DIC microscopes, with binocular
tubes, but DENIED with regard to the Axiovert 100 microscopes, with
binocular tubes, and the Axioskop H DIC and Axioskop HD DIC
microscopes, with binocular phototubes. The protest should also be
DENIED with regard to the Axiovert 100 microscopes, with binocular
phototubes, and the Axiovert 135 and 405 microscopes, with either - 9 -
binocular phototubes or binocular tubes, since the rate of duty
under the classification indicated above is more than the
liquidated rate.
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
Commercial Rulings Division