CLA-2 RR:CR:GC 966974 DBS
Mr. Bob Forbes
R.O.E. Logistics
660 Bridge Street
Montreal, Quebec Canada
H3K 3K9
RE: Field Microscope Kits; NAFTA eligibility
Dear Mr. Forbes:
This is in response to your letter of September 17, 2003, received on January 6, 2004, to the Director, National Commodity Specialist Division, New York, on behalf of Richardson Technologies, Inc., stating the classification of the a field microscope kit under the Harmonized Tariff Schedule of the United States (HTSUS), and inquiring as to the status of eligibility of the kit under the North American Free Trade Agreement (NAFTA). Your letter was referred to this office for reply.
FACTS:
The merchandise at issue is the Richardson RFM-2L Professional Field Kit. The kit includes the Richardson Field Microscope (2-RFM-2L) with operator's manual, Richardson test slide and user guide, RFM-2 objectives, RFM-2L AC Adapter, C-mount tube and MDC adapter lens, various eyepieces, spare microscope tubes, Nikon COOLPIX 4500( digital camera with operator's manual and accompanying accessories and application software (USB connector cable, AV connector cable, AC adapter, lithium ion battery charger and power cord, remote shutter control, camera strap and lens cover, instruction manual and quick start guide), 9V batteries for the RFM-2L, table top tripods, large tripod, flashlight and batter cover screwdriver, and field sample preparations kit (Allen wrenches, note pad, sample slides, eyedropper, tape, lens paper, cardstock for sample mounting, gel filters, tweezers). The kit is imported in a large hard plastic case with precut foam insert allocating space for each of the components of the kit.
The field kit is intended for examining and capturing digital images of forensic material outside of the lab. The battery-powered microscope is designed for portability with, as the descriptive literature submitted with the request states, "military grade ruggedness, innovative lighting system and professional grade optics." The eyepiece is interchangeable with the camera mount adapter and c-mount tubing in order to record digital images of microscopic views. The digital camera may also be used independently of the microscope.
The country of origin for the microscope and many of its parts and accessories is Canada. The travel case, flashlight, screwdriver, tweezers and various other components of the set originate in the United States. Several of the goods, such as the eyepieces, tripods and digital camera, do not originate in a NAFTA member country; they originate in China, Japan and Russia.
ISSUES:
1. Whether the field microscope kit is classified as goods put up in sets for
retail sale, and, if so, whether the digital camera impacts the classification of the article which imparts the essential character of the set.
2. Whether the kit is eligible for NAFTA preferential treatment.
LAW AND ANALYSIS:
I. Classification
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods
shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
9011 Compound optical microscopes, including those for photomicrography, cinemicrography or microprojection; parts and accessories thereof:
9011.20 Other microscopes, for photomicrography, cinemicrography or microprojection:
9011.20.40 Provided with a means for photographing the image.
* * *
9011.80.00 Other microscopes.
When imported as a set, classification of the merchandise under a single heading cannot be determined by applying GRI 1 and we therefore must apply the other GRIs. GRI 3 provides for goods that are prima facie classifiable under two or more headings. GRI 3(a) provides that the heading with most specific description of the goods prevails, but when two or more headings each refer to part only of the items in a set, the headings are to be regarded as equally specific in relation to the goods. GRI 3(b) instructs that mixtures, composite goods, and goods put up in sets for retail sale, which cannot be classified according to GRI 3(a), shall be classified by the component which gives them their essential character.
To constitute “goods put up in sets for retail sale,” the kit must satisfy the following criteria set forth in EN (X) to GRI 3(b). If the components do not satisfy the criteria, they are classified individually. The kit must:
(a) consist of at least two different articles which are, prima
facie, classifiable in different headings. Therefore, for
example, six fondue forks cannot be regarded as a set
within the meaning of this Rule;
(b) consist of products or articles put up together to meet a
particular need or carry out a specific activity; and
(c) [be] put up in a manner suitable for sale directly to users without
repacking (e.g., in boxes or cases or on boards).
The components of the field microscope kit consist of articles classifiable in several headings (e.g., microscope - heading 9011, HTSUS, and digital camera - heading 8525, HTSUS). They are put up together to carry out the specific activity of performing on-site forensic examinations. The importer informed this office that the components are imported in the specially fitted case. Therefore, it is suitable for sale directly to users without repacking. Accordingly, the field microscope kit meets the criteria of a goods put up in a set for retail sale, classifiable as if it consists only of the component which provides its essential character.
We must now determine which component imparts the essential character of the set. The EN VIII to GRI 3(b), states, “The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” Recent court decisions on the essential character for 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Better Home Plastics Corp. v. U.S., 916 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. U.S., 966 F.Supp. 1245 (CIT 1997), rehear’g denied, 994 F. Supp. 393 (1998); Vista Int’l Packing Co. v. U.S., 890 F. Supp. 1095 (CIT 1995). See also Pillowtex Corp. v. U.S., 893 F. Supp. 188 (CIT 1997), aff’d 171 F. 3d 1370 (Fed. Cir. 1999).
The components of the instant set all contribute, in whole or in part, to use of the microscope. For example, the tripod is used to stabilize or raise the microscope, the C-mount is used to attach the digital camera to the microscope, the digital camera is used, in part, to capture images of the view through the microscope, the tweezers are used to collect small items to be viewed under the microscope, the case is specially fitted to carry the components of the set, etc. In addition, the microscope is the component which is specifically designed for use in the field rather than in a laboratory, as demonstrated by its portability and ruggedness. Therefore, we find that the microscope imparts the essential character of the set. Thus the set is classified in heading 9011, HTSUS.
Once the heading is no longer at issue, we turn to GRI 6, which provides:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
In your ruling request you suggested the set should be classified in subheading 9011.20, HTSUS, which provides, in relevant part, for microscopes for photomicrography. The EN 90.11 states:
(A) Microscopes for photomicrography and microscopes for cinephotomicrography. 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.
While the microscope at issue is a conventional microscope entered, in part, with a camera that can be temporarily fixed by means of simple attachment, the camera is not a photographic or cinematographic camera. It is a digital camera, which is a good of heading 8525, HTSUS. It does not perform photographic recording on film, an indispensable component of a conventional (photographic) camera. See HQ 963869, April 17, 2001 and EN 90.06 (photographic cameras). It captures and records images digitally, a function not covered in the headings which provide for photographic or cinematographic cameras, heading 9006 and 9007, HTSUS. As such, it cannot be covered in subheading 9011.20, HTSUS.
Moreover, given that the camera and its accessories are a part of the set and that the essential character of the set is imparted by the microscope, it would inconsistent with the "legal fiction" created by GRI 3(b) to consider the camera as part of the microscope. See The Pomeroy Collection, Inc. v. United States, 246 F. Supp. 2d 1286, 1294 (CIT 2002), a'ffd The Pomeroy Collection, Ltd. v. United States, 336 F.3d 1370 (Fed. Cir. 2003) ("…in which a composite article is classified as if it consists wholly of the component which imparts the overall good with its 'essential character’"). Therefore, a microscope with digital camera attached does not fall within the scope of subheading 9011.20, HTSUS.
In the event that merchandise is not found to be classifiable under a specific subheading, it is then classified as "other." The "other," or "basket," provision of a subheading should be used only if there is no tariff category that more specifically covers the merchandise. See Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247, 1251 (C.I.T. 2000) (citing EM Industries, Inc. v. United States, 999 F. Supp. 1473, 1480 (C.I.T. 1998)); see also GRI 3(a) ("The heading which provides the most specific description shall be preferred to headings providing a more general description."). The instant microscope is not covered more specifically by any other subheading within heading 9011, HTSUS. Therefore, it is classified in subheading 9011.80.00, HTSUS, as other compound optical microscopes. Accordingly, the Richardson RFM-2L Professional Field Kit is classified at GRI 3(b) in subheading 9011.80.00, HTSUS.
II. Eligibility under NAFTA
The eligibility criteria for NAFTA preferential treatment are set forth in General Note (GN) 12, HTSUS, and the NAFTA Rules of Origin Regulations (ROR) (19 C.F.R. Part 181, App.). To be eligible for tariff preferences under NAFTA, goods must be "originating goods" within the rules of origin set forth in GN 12(b), HTSUS. Goods imported into the United States may be considered goods originating in the territory of a NAFTA party if "they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States," or "they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials." See General Note 12(b)(i) and (iii), HTSUS. Goods may also be considered originating if they have been "transformed in the territory of Canada, Mexico and/or the United States" pursuant to General Note 12(b)(ii), HTSUS, which states:
(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note. . . .
Noting that the set at issue is classified in subheading 9011.80.00, HTSUS, the applicable rule is GN 12(t)/90, which states, in relevant part: "A change to subheadings 9011.10 through 9011.80 from any other heading." The digital camera and its components are all classified in heading 8525, HTSUS, the eyepieces, objectives and relay lens are classified in heading 9002, HTSUS, and the tripod is classified in either Chapter 73 if steel or Chapter 76 if aluminum. See Note 2, Chapter 90. As each of the non-originating goods shift to subheading 9011.80, HTSUS, from other headings, they all meet the tariff shift rules and may be deemed originating goods along with the microscope which is an originating good. Accordingly, the Richardson RFM-2L Professional Field Kit is eligible for preferential tariff treatment under NAFTA.
You have requested only whether the set is eligible for preferential treatment. Please note that the country of origin marking rules differ from the rules of eligibility under NAFTA. Marking is governed by Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. §1304), and determined pursuant to Section 102.11, Customs Regulations (19 CFR §102.11), which sets forth the required hierarchy for determining whether a good is a good of a NAFTA country for the purposes of country of origin marking. If you desire a ruling on the country of origin marking of the instant merchandise, please send your request to the Director, National Commodity Specialist Division, One Penn Plaza, 10th Floor, New York, NY 10119.
HOLDING:
At GRI 3(b), the Richardson RFM-2L Professional Field Kit is classified in subheading 9011.80.00, HTSUS, which provides for, "Compound optical microscopes, including those for photomicrography, cinemicrography or microprojection; parts and accessories thereof: Other microscopes."
By virtue of the microscope and various other items in the set being wholly obtained or produced entirely in Canada or the United States, and the digital camera and its parts and accessories, eyepieces, objectives, relay lens and tripod meet the applicable tariff shift rule, the set is eligible for preferential treatment under NAFTA.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division