CLA-2 RR:TC:MM 958579 LTO
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").
- 3 -
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
Tariff Classification Appeals Division