CLA-2 CO:R:C:M 951468 DWS
Mr. Jon E. Sollid
President and CEO
Sollid Optics, Inc.
365 Valle Del Sol
Los Alamos, NM 87544
RE: "Aladin Thermo Microscope"; Heading 9011; Heading 9012;
EN 90.11; EN 90.12(A); HQ 088231
Dear Mr. Sollid:
This is in response to your letters of October 23, 1991, and
February 5, 1992, to Customs in New York, concerning the
classification of the "Aladin Thermo Microscope" under the
Harmonized Tariff Schedule of the United States (HTSUS). As you
were advised by NY 871914, dated March 25, 1992, this matter was
referred to this office for response.
FACTS:
The "Aladin Thermo Microscope" is designed to allow its
operator to view beneath the surface of a specimen using
photothermal techniques. The microscope is used to detect near-
surface material cracks, discontinuities, and inhomogeneities of
a material. It generates a thermal image by focusing a laser
beam which heats the surface under examination and diffuses a
thermal wave into the material. For example, changes in thermal
material properties at a crack in a specimen cause an
accumulation of heat which then changes the surface temperature
of the specimen. The surface temperature is observed by
measuring the infrared radiation which is then used to build up
a thermal image. The measured signals from the thermal image are
displayed on a monitor and then processed. Because structural
information can be determined in the thermal image by different
amplitudes and color levels, an operator can detect
inhomogeneities.
The image that is displayed is an infrared image, not an
optical one. However, an optical microscope is used to direct a
pulse of visible or near infrared radiation to a specimen.
ISSUE:
What is the proper classification of the "Aladin Thermo
Microscope" under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
Heading 9011, HTSUS, provides for: "[c]ompound optical
microscopes, including those for photomicrography,
cinemicrography or microprojection; parts and accessories
thereof."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive, are
to be used to determine the proper interpretation of the HTSUS.
In part, Explanatory Note 90.11 (pp. 1475-1476), HTSUS, states
that:
[a] compound optical microscope normally comprises:
(I) An optical system consisting essentially of an objective
designed to produce a magnified image of the object, an
eyepiece which further magnifies the observed image.
The optical system usually also incorporates provision
for illuminating the object from below (by means of a
mirror illuminated by an external or an integral light
source), and a set of condenser lenses which direct the
beam of light from the mirror on to the object.
(II) A specimen stage, one or two eyepiece-holder tubes
(according to whether the microscope is the monocular or
binocular type), and an objective-holder (generally
revolving).
It is our position that the "Aladin Thermo Microscope" does
not fit the description of a compound microscope as provided in
Explanatory Note 90.11, HTSUS. The primary reason is that the
subject microscope does incorporate the above described optical
system. In fact, it is stated in the provided literature that
"[b]y contrast with the information on surfaces derived using
optical methods, the thermal images provide valuable additional
3-D information as a function of the penetration of the thermal
waves." (emphasis supplied). Therefore, the subject microscope
is not classifiable under heading 9011, HTSUS.
Heading 9012, HTSUS, provides for: "[m]icroscopes other than
optical microscopes; diffraction apparatus; parts and accessories
thereof." In part, Explanatory Note 90.12(A) (p. 1477) states
that:
[t]his heading also includes scanning electron microscopes
in which a very fine beam of electrons is directed
repeatedly onto different points of the sample. Information
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.
Although the "Aladin Thermo Microscope" incorporates an
infrared laser beam instead of an electron beam, its operation is
very similar to those microscopes described in heading 9012,
HTSUS. See HQ 088231, dated March 8, 1991.
Consequently, it is our position that the "Aladin Thermo
Microscope" is classifiable under subheading 9012.10.00, HTSUS,
which provides for: "[m]icroscopes other than optical
microscopes; diffraction apparatus."
HOLDING:
The "Aladin Thermo Microscope" is classifiable under
subheading 9012.10.00, HTSUS. The general, column one rate of
duty is 4.4 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division