HQ 956638: Moeller Microsurgical Surgical Microscope; Compound Optical Microscope; EN 90.11; heading 9018; HQs 085754, 088121, 954640; HQ 954362, Revoked

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 956638

                         December 7, 1994

CLA-2 CO:R:C:M 956638  RFA

CATEGORY:  Classification

TARIFF NO.: 9011.10.80


Mr. Chris Wallace 
Jagro Air Services, Inc.
Airport Industrial Office Park
145th Avenue & Hook Creek Boulevard 
Building #C-5D
Valley Stream, NY  11581

RE:  Moeller Microsurgical Surgical Microscope; Compound Optical
     Microscope; EN 90.11; heading 9018; HQs 085754, 088121,
     954640; HQ 954362, Revoked


Dear Mr. Wallace:

     This is in reference to HQ 954362, issued to you on June 30,
1993, on behalf of Moeller Microsurgical, Inc., in which the
tariff classification of a surgical microscope was determined
under the Harmonized Tariff Schedule of the United States
(HTSUS).  Pursuant to section 625(c)(1), Tariff Act of 1930 (19
U.S.C. 1625(c)(1)), as amended by section 623 of Title VI
(Customs Modernization) of the North American Free Trade
Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat.
2057, 2186 (1993)(hereinafter, "section 625"), notice of the
proposed revocation of HQ 954362 was published on October 19,
1994, in the Customs Bulletin, Volume 28, Number 42.  The only
comment received in response to the notice disagreed with the
proposal, but did not set forth a rationale for the position upon
which we can comment.  Our decision in this matter is set forth
below.

FACTS:

     The subject merchandise consists of a binocular surgical
microscope, used by surgeons when operating on a very small area
of the body.  The microscope contains double eyepieces and
objectives with independent light paths, and thus creates a
three-dimensional image.  The merchandise possesses a microscope
arm, with a light source built into the arm.  The microscope may
be mounted to a ceiling or to a floor stand, and the arm has
free-floating movement capability in all directions. 

     The subheadings under consideration are as follows:

     9011.10:  Compound optical microscopes, including those for
               photomicrography, cinemicrography or micro
               projection. . . : [s]tereoscopic microscopes: 

     9011.10.40     Provided with the means for photographing the
                    image. . . .


          Goods classifiable under this provision have a general,
          column one rate of duty of 4.9 percent ad valorem.

     9011.10.80     Other. . . . 

          Goods classifiable under this provision have a general,
          column one rate of duty of 9 percent ad valorem.

     9018      Instruments and appliances used in medical,
               surgical . . . sciences, including scintigraphic
               apparatus, other electro-medical apparatus and
               sight-testing instruments. . .:

     9018.90.20     Other instruments and appliances and
                    appliances and parts and accessories thereof:
                    [o]ptical instruments and appliances. . .:
                    [o]ther. . . .

          Goods classifiable under this provision have a general,
          column one rate of duty of 10.0 percent ad valorem. 

ISSUE:

     Whether the ophthalmic surgical microscope is classifiable
as a compound optical microscope or as a surgical microscope
under the HTSUS?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's).  GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.

     In HQ 954362, dated June 30, 1993, Customs classified the
surgical microscopes, as other optical instruments used in
surgical science under subheading 9018.90.20, HTSUS.  Customs
based this decision upon the Harmonized Commodity Description and
Coding System Explanatory Notes (ENs) to heading 9011, HTSUS. 
The 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 indicative of the proper interpretation of
these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23,
1989).  In part, EN 90.11, pages 1475-1476, states that:

     . . . the compound optical microscope of this heading
     has a second stage of magnification for the observation
     of an already magnified image of the object. 

     A compound optical microscope normally comprises:

     (I)  An 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.  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).

     . . . This heading covers microscopes as used by
     amateurs, teachers, etc., and those for industrial use
     or for research laboratories. . . .

     After citing EN 90.11, Customs determined that the subject
microscope did not meet the definition because: it did not have a
second stage of magnification; it was used to perform
microsurgery on a human body, and not used to study and observe
objects for laboratory research or industrial purposes.

     Customs has since learned that the surgical microscope does
meet the definition for compound optical microscopes for heading
9011, HTSUS, because it has a second stage of magnification for
the observation of an already magnified image of an object.  EN
90.18, pages 1487-1488, states in pertinent part:

          This heading covers a very wide range of
     instruments and appliances which, in the vast majority
     of cases, are used only in professional practice (e.g.,
     by doctors, surgeons, dentists, veterinary surgeons,
     midwives), either to make a diagnosis, to prevent or
     treat an illness or to operate, etc. . . .

          The heading does not cover:
               *    *    *
          (ij) Microscopes, etc., of heading 90.11 or 90.12.



     Because the subject merchandise meets the definition of
compound optical microscopes covered under heading 9011, HTSUS,
classification under heading 9018, HTSUS, is precluded.

     The only remaining issue is whether the subject microscopes
are provided with the means for photographing the image.  Customs
has consistently determined that microscopes capable of
photomicrography, but which were imported without the device for
photographing an image, cannot be considered to be "provided with
a means for photographing the image".  See HQ 954640, dated
October 25, 1994; HQ 088121, dated February 26, 1991; HQ 085754,
dated December 26, 1989.  According to the invoices, the subject
merchandise was imported without the means for photographing the
images.  Therefore, we find that the surgical microscopes are to
be classified as compound optical microscopes, provided without
the means for photographing the image, under subheading
9011.10.80, HTSUS. 

HOLDING:

     Under the authority of GRI 1, the surgical microscope is
provided in heading 9011, HTSUS.  It is classifiable under
subheading 9011.10.80, HTSUS, which provides for: "[c]ompound
optical microscopes, including those for photomicrography,
cinemicrography or micro projection. . . : [s]tereoscopic
microscopes: [o]ther. . . ."  Goods classifiable under this
provision have a general, column one rate of duty of 9 percent ad
valorem.

     HQ 954362, dated June 30, 1993, is revoked. In accordance
with section 625, this ruling will become effective 60 days after
publication in the Customs Bulletin.  Publication of rulings or
decisions pursuant to section 625 does not constitute a change of
practice or position in accordance with section 177.10(c)(1),
Customs Regulations [19 CFR 177.10(c)(1)].


                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division