CLA-2 CO:R:C:M 950060 AJS
Mr. Byron Johnson
McClary, Swift & Co., Inc. - Blaine, Inc.
P.O. Box 370
Blaine, WA 98230
RE: Optical memory subsystem; scanning electron microscope;
heading 8471; subheading 8471.91.00; Chapter 84, note
5(A)(a); ENs 90.12 (A); Chapter 90, note 2(b); United States-
Canada Free-Trade Agreement; General Note 3(c)(vii)(B).
Dear Mr. Johnson:
Your letter of July 10, 1991, regarding the
classification of the "Scanning Electron Microscopy Image
Management System" (System) has been forwarded to this
office for reply.
FACTS:
The article under consideration is the Optical Memory
Subsystem (OMS) of the System. It is a microcomputer based
image archiving system designed for scanning electron
microscopes. The OMS captures, digitizes, forms a database,
enhances and archives images from a scanning electron
microscope. These images are indexed in a master database by
batch name or reference number and then stored on removable
optical disks.
ISSUE:
Whether the OMS is properly classifiable within heading
8471, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for automatic data
processing (ADP) machines and units thereof; or classifiable
within heading 9012, HTSUSA, which provides for "[m]icro-
scopes . . . parts and accessories thereof."
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LAW AND ANALYSIS:
Heading 8471, HTSUSA, provides for ADP machines and
units thereof. It is claimed that the OMS is classifiable
within subheading 8471.91.00, HTSUSA, which provides for
digital processing units. ADP machines are digital machines
capable of (1) storing the processing program or programs and
at least the data immediately necessary for execution of the
program; (2) being freely programmed in accordance with the
requirements of the user; (3) performing arithmetical
computations specified by the user; and (4) executing,
without human intervention, a processing program which
requires them to modify their execution, by logical decision
during the processing run. Chapter 84, note 5(A)(a). After
examining the submitted literature, the OMS does not appear
capable of satisfying numbers (2) and (4) of the above legal
note. Accordingly, it is not properly classifiable within
subheading 8471.91.00, HTSUSA, as a digital processing unit.
Heading 9012, HTSUSA, provides for microscopes and parts
and accessories thereof. The Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) state
that this heading includes scanning electron microscopes.
ENs 90.12 (A), p. 1478 (1991). Parts and accessories
suitable for use solely or principally with scanning electron
microscopes are to be classified within this heading. ENs
90.12, p. 1478; See also Chapter 90, note 2(b). The OMS
satisfies this description. It is image archiving system
designed for and used with scanning electron microscopes.
Accordingly, the OMS is properly classifiable within this
heading. More specifically, it is described within
subheading 9012.90.00, HTSUSA, which provides for parts and
accessories of a scanning electron microscope.
The United-States Canada Free-Trade Agreement ("CFTA")
states in part:
goods imported into the customs territory of the United
States are eligible for treatment as "goods originating
in the territory of Canada" only if--
(1) they are goods wholly obtained or produced in
the territory of Canada and/or the United
States, or
(2) they have been transformed in the territory of
Canada and/or the United States, so as to be
subject--
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(I) to a change in tariff classification as
described in the rules of subdivision
(c)(vii)(R) of this note, or
(II) to such other requirements subdivision
(c)(vii)(R) of this note may provide when
no change in tariff classification
occurs, and they meet the other
conditions set out in subdivisions
(c)(vii)(F), (G), (H), (I), (J), and (R)
of this note.
General Note 3(c)(vii)(B), HTSUSA, as amended by
Presidential Proclamation 6142 of May 25, 1990.
Information has not been provided to establish whether or not
the OMS is a good originating in the territory of Canada.
Accordingly, status under the CFTA cannot be determined at
this time.
HOLDING:
The Optical Memory Subsystem is classifiable within
subheading 9012.90.00, HTSUSA, which provides for parts and
accessories of microscopes, other than optical microscopes.
Merchandise of this subheading is dutiable at the General
Column 1 rate of 6.2 percent ad valorem, or 4.3 percent ad
valorem if eligible for treatment under the CFTA.
Sincerely,
John Durant, Director
Commercial Rulings Division