CLA-2 CO:R:C:M 956161 MBR
Mr. Terry Suzuki
Win Systems of America Corporation
299 Pleasant Street
Haworth, New Jersey 07641
RE: Hi-Scope System; Video Microscope System; Model KH-2200;
Charge Coupled Device; CCD; HQ 953116; HQ 088025; HQ 953116;
HQ 952164; HQ 088121; HQ 085754; HQ 086847; HQ 088336; NEC
America, Inc.; Corporacion Sublistatica, S.A.; Davis Turner
& Co.; Simmon Omega, Inc.; Trans-Atlantic Co.; Ameliotex,
Inc.; Esco Mfg. Co.;
Dear Mr. Suzuki:
This is in reply to your letter of February 22, 1994, to the
Area Director of Customs, New York Seaport, requesting
classification of the "Hi-Scope System," video microscope system,
model KH-2200, under the Harmonized Tariff Schedule of the United
States (HTSUS). Your letter was forwarded to this office for
reply.
FACTS:
The Hi-Scope video microscope system is designed to depict
magnified, color images on a television monitor for viewing and
video storage. It can be used for quality control, inspection,
film inspection, dermatology examination, etc.
The system consists of a hand held wand which incorporates a
lighting unit, zoom lenses of varying magnification, and a charge
coupled device ("CCD") video camera. The wand is connected to a
main control box by a fiber optic cable. The control box has a
video output jack which carries a standard television broadcast
signal to any type of output device, such as; video monitor, VCR,
video printer, analyzer, floppy recorder, echo-lyzer, or digi-
scale (none of which are included).
The internal sensor element is a CCD. CCDs are semiconductors
which contain a grid of numerous photosensitive cells, or pixels.
As the image-forming light of an object is focused onto the grid,
each pixel receives a certain quantity of light which is translated
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into an electrical charge. The result is a pattern of electrical
charges which represent an image.
ISSUE:
What is the classification of the "Hi-Scope System," video
microscope system model KH-2200, under the Harmonized Tariff
Schedule of the United States (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:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
You contend that classification is appropriate under heading
8525, HTSUS, which provides for television cameras. While the Hi-
Scope system reproduces images on a TV monitor, it incorporates
magnification lenses and is designed exclusively for the viewing
of magnified images. Therefore, the Hi-Scope is not within the
scope of heading 8525, HTSUS. Whereas, heading 9011, HTSUS,
provides for: "[c]ompound optical microscopes, including those for
photomicrography, cinemicrography or microprojection; parts and
accessories thereof." The Harmonized Commodity Description and
Coding System Explanatory Notes ("ENs") constitute the Customs
Cooperation Council's official interpretation of the HTSUS. While
not legally binding, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally an indication of the
proper interpretation of these headings. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989). EN 90.11, page 1475, states
as follows:
Whereas magnifiers of heading 90.13 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.
The instant zoom microscopic lenses incorporate fourteen high
quality optic elements which "give you an image you can't
distinguish from one taken with a fixed magnification lens." See
the Hi-Scope System brochure, page 8. Therefore, these lenses
qualify as compound optical microscopic lenses due to their
multiple lens design.
The court has stated that "[i]t must also be remembered that
the tariff statutes were enacted 'not only for the present but also
for the future, thereby embracing articles produced by technologies
which may not have been employed or known to commerce at the time
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of the enactment * * *.'" NEC America, Inc. v. United States, 8 CIT
184, 186 (1984), citing Corporacion Sublistatica, S.A. v. United
States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also
Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669
(1957). See also Simmon Omega, Inc. v. United States, 83 Cust. Ct.
14, C.D. 4815 (1979), and Trans-Atlantic Co. v. United States, 471
F. 2d 1397, 60 CCPA 100, C.A.D. 1088 (1973), in which the courts
have held that technological advancements and "improvement in the
design of an article does not militate against its continuing to
be a form of the named articles."
Furthermore, it is commonly and commercially known as a "video
microscope system." The court has stated that "[t]he tariff
schedules are written in the language of commerce, and the terms
used are to be given their commercial or common meaning." See
Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200, 565
F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA 71,
73 C.A.D. 1167, 530 F.2d 949, 951 (1976).
HQ 953116, dated October 6, 1993, was a classification
decision relating to the "MicroImager Digital Camera." This device
was designed to be attached to various other devices, such as
microscopes, telescopes, x-ray image converters, etc. However, it
was separately presented from those devices. As the EN regarding
heading 90.11, HTS, states above: "[s]eparately presented
photographic or cinematographic cameras for photomicrography or
cinephotomicrography are excluded (heading 90.06 or 90.07
respectively)." Therefore, it was held to be classifiable pursuant
to its function, in subheading 8525.30.00, HTSUS, which provides
for television cameras.
HQ 088025, dated January 17, 1991, was a classification
decision relating to the "Leco 2001 Image Analysis System" was
generally used with microscopes (but was not incorporated into a
microscope) and was designed specifically for measuring and
checking functions. Therefore, it was held classifiable in
subheading 9031.40.00, HTSUS, which provides for other optical
measuring and checking instruments.
The Hi-Scope System consists of at least two components: a
hand held wand (which incorporates a lighting unit, a lens, and a
CCD video camera), and a main control box which is connected via
fiber optic cables. Chapter 90, Legal Note 3 states as follows:
"[t]he provisions of note 4 to section XVI apply to this chapter."
The Legal Note 4 to Section XVI provides the following
classification guidance regarding functional units, such as the
instant system:
Where a machine (including a combination of machines) consists
of individual components (whether separate or interconnected
by piping, by transmission devices, by electric cables or by
other devices) intended to contribute together to a clearly
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defined function covered by one of the headings in chapter 84
or chapter 85, then the whole falls to be classified in the
heading appropriate to that function.
The Hi-Scope System is a group of machines, interconnected by
cables, intended to contribute to the clearly defined function of
optical microscopy. Therefore, the system is properly classifiable
in subheading 9011.20.40, HTSUS.
The Hi-Scope system is designed to produce a video (NTSC)
image, rather than one captured on film (photographic).
Furthermore, CCD video cameras have been consistently held not to
be within the scope of the HTSUS term "photographic." In HQ
088336, dated August 20, 1991, and HQ 086847, dated April 20, 1990,
Customs held that:
In addition to the guidance provided by the HTSUSA's
classification of electrical articles, there is lexicographic
authority for the position that electronic devices which use
CCD's are distinguished from photographic articles. The
McGraw Hill Encyclopedia of Science and Technology, Vol. 3,
p. 168, provides:
Electronic camera. Advances in the field of
solid-state electronics have made possible
the development of the electronic still camera.
Unlike photographic cameras, in which film senses
and records the image-forming light, the electronic
still camera uses a solid-state image sensor to
sense the image-forming light and a separate recording
medium to record and store the picture. (Emphasisadded).
In our opinion an electronic still video camera which
uses a charge coupled device and records electrical
representations of images on magnetic discs principally
functions as an electrical apparatus and not as a photographic
apparatus. Thus, still video cameras are not classifiable as
photographic cameras in Heading 9006.
Therefore, the video microscope is not classifiable in
subheading 9011.20, HTSUS, which provides for: "[o]ther
microscopes, for photomicrography, cinemicrography or
microprojection." See also HQ 085754, dated December 26, 1989, and
HQ 088121, dated February 26, 1991, in which Customs held that
microscopes imported without photographic cameras were not
classifiable in subheading 9011.20, HTSUS. Thus, the instant video
microscope remains classifiable in subheading 9011.80.00, HTSUS,
which provides for other microscopes.
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HOLDING:
The "Hi-Scope System," video microscope system, model KH-
2200, is classifiable in subheading 9011.80.00, HTSUS, which
provides for: "[c]ompound optical microscopes, including those for
photomicrography, cinemicrography or microprojection: [o]ther
microscopes." The rate of duty is 8% ad valorem.
Sincerely,
John Durant, Director