# HQ 965583

August 27, 2002

**CLA-2 RR:CR:GC** 965583 BJB

**CATEGORY:** Classification

**TARIFF NO.: 9503.90.00; 9011.20.40; 8524.39.40**

Port Director

U.S. Customs Service

1000 2^nd^ Avenue

Seattle, WA 98104-1049

**RE:** Protest 3001-01-100486; Compound optical microscope; and
Maxscope viewer

Dear Port Director:

This is our decision regarding Protest 3001-01-100486, filed by counsel
on behalf of Fingerhut Corporation ("protestant") concerning the
classification, under the Harmonized Tariff Schedule of the United
States ("HTSUS"), of "maxscope" and "microscope" kits. In preparing this
decision, consideration was given to counsel's December 13, 2001
memorandum and descriptive product sales documentation submitted in
support of the protest.

**FACTS:**

Protestant filed the subject two entries of goods on November 3 and 19,
2000. The entries included two kits of articles described by protestant
as a **"deluxe microscope kit," model 1W29R**, and a **"maxscope kit,"
model 1W62Y.** Protestant classified these goods at entry under
subheading 9011.80.00, HTSUS, as "\[c\]ompound optical microscopes,
including those for photomicrography, cinemicrography or
microprojection; parts and accessories thereof: Other microscopes\[.\]"

Customs liquidated the entries under that classification on September
14, and October 5, 2001, respectively. The protest and application for
further review were filed on December 13, 2001, seeking reliquidation of
the subject goods under subheading 9503.70.00, HTSUS, as "\[o\]ther
toys; reduced-size ("scale") models and similar recreational models,
working or not; puzzles of all kinds; parts and accessories thereof:
Other toys, put up in sets or outfits, and parts and accessories
thereof\[.\]"

In the alternative, protestant sought reliquidation of the "deluxe
microscope kit" under subheading 9011.20.40, HTSUS, as "\[c\]ompound
optical microscopes, including those for photomicrography,
cinemicrography or microprojection; parts and accessories thereof: Other
microscopes, for photomicrography, cinemicrography or microprojection:
Provided with a means for photographing the image\[.\]"

A sample of the "deluxe microscope kit" and its carrying case, model
1W29R, was provided. No samples of the "maxscope kit," model 1W62Y, were
provided, however, protestant submitted descriptive materials and
pictures for both kits and contents.

# Protestant also submitted descriptions of the contents of each kit in separate "selling features lists," dated October 16, 2001, and with advertisements picturing all of the articles. 

# 

# The deluxe microscope kit, model 1W29R, has over 30 different articles including: a microscope; a microphoto camera; one microviewer; one projector; one drawing device; lenses: 100x, 300x, and 600x; filter turret; one 10 x 20 zoom eyepiece; CD-Rom instruction manual; gray molded plastic carry case (15" x 10.75" x 4"); 3x-6x magnifier; 10 blank glass slides; 2 prepared slides; 6 specimens; 12 cover glasses; 12 blank labels; 12 statical slide covers; 1 vial of shrimp eggs; 1 vial of eosin; 1 vial of methylene blue; 1 vial of salt; 2 collecting vials; 1 stirring rod; a petri dish; 3 graduated cylinders; 1 scalpel; 1 needle; 1 pair of tweezers; 1 spatula; 1 dropper; a pair of safety goggles/glasses; 1 micro-hatchery; a pair of scissors; 1 condenser lens cap; and 1 micro-slicer.

The **"deluxe microscope kit," model 1W29R,** is described as "a
microscope lab that takes pictures," and comes with the microphoto
camera, microviewer, projector, and drawing device. The kit's microscope
has a metal base and fittings. It measures approximately 11" in height,
has an eyepiece with a diameter of more than 300mm (outside diameter of
the lens tube), and a tube length of nearly 750 mm (distance between the
face where the eyepiece is attached and the face where the objective is
attached). The microphoto camera uses 110 film to take still
photographs. The microviewer provides for observation of a projection of
the sample. The projector provides the capability to project the
magnified image, and the drawing device to trace the projected image
with the help of a pencil.

The **"maxscope kit,"** **model 1W62Y**, has 13 different articles,
including a combined 8 3/8-inch diagonal display screen and microscope
unit, 2 prepared slides, 10 blank slides, tweezers, stirring rod,
dropper, 2 collecting vials, Petri dish, 2 containers of 12 blank
labels, micro-hatchery, one vial of shrimp eggs, one vial of sodium
chloride, and a spare light bulb.

The **"maxscope kit," model 1W62Y**, is described as "a microscope set,"
and its purpose, to "encourage your child's inquisitive nature with this
fun\[.\]" The maxscope unit is set in a pale gray plastic housing that
includes a power selection knob, with lower 20X, 40x, 60x, and 80x lens
magnification, focusing knob, bulb positioning knob, and on/off button.

On March 29, 2002, Customs issued Customs Form 6445A, amending its
classification of the **"deluxe microscope kit,"** under subheading
9011.20.40, HTSUS, as "\[c\]ompound optical microscopes, including those
for photomicrography, cinemicrography or microprojection; parts and
accessories thereof: Other microscopes, for photomicrography,
cinemicrography or microprojection: Provided with a means for
photographing the image\[.\]" The **"maxscope kit,"** was classified
under subheading 9503.70.00, HTSUS, as "\[o\]ther toys; reduced-size
("scale") models and similar recreational models, working or not;
puzzles of all kinds; parts and accessories thereof: Other toys, put up
in sets or outfits, and parts and accessories thereof\[.\]"

**ISSUE:**

What is the tariff classification of the subject "deluxe microscope" and
"maxscope," and accompanying articles, under the HTSUS?

**LAW AND ANALYSIS:**

We note initially that the protest was timely filed under the statutory
and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19
CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation ("GRI's"). 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 GRI's may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes
("EN's") constitute the official interpretation of the Harmonized System
at the international level. While neither legally binding nor
dispositive, the EN's provide a commentary on the scope of each heading
of the HTSUS and are generally indicative of the proper interpretation
of these headings. Customs believes the EN's should always be consulted.
*See* T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 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:

      20. Other microscopes, for photomicrography, cinemicrography or
          microprojection:

          40. Provided with a means for photographing the image . . .

9011.80 Other microscopes . . .

9503. Other toys; reduced-size ("scale") models and similar recreational
      models, working or not; puzzles of all kinds; parts and
      accessories thereof:

      70. Other toys, put up in sets or outfits, and parts and
          accessories thereof . . .

9503.90 Other . . .

# Deluxe Microscope, Model 1W29R:

Heading 9011, HTSUS, in pertinent part, provides for "\[c\]ompound
optical microscopes, including those for photomicrography,
cinemicrography or microprojection; parts and accessories thereof\[.\]"
At GRI 1, the "deluxe microscope" is *prima facie* classifiable under
heading 9011, HTSUS, as it is capable of multiple levels of
magnification. It has a 10x-20x zoom eyepiece with a diameter of
approximately 300mm, an eyepiece tube-length of nearly 750 mm, multiple
objectives, and includes a camera with mounting mechanism for
photomicrography.

Further, EN 90.11 provides 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, 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).

> The whole is fixed on a stand to which a limb or bracket and various
> adjusting accessories may be attached.
>
> This heading covers microscopes as used by amateurs, teachers, etc.,
> and those for industrial use or for research laboratories; they remain
> in the heading whether or not they are presented with their optical
> elements (objectives, eyepieces, mirrors, etc.)."
>
> . . . .

The heading also covers:

> \(A\) **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."

The "deluxe microscope" is fixed on a substantial metal base to which a
limb, brackets, a camera, and adjusting accessories are or may be
attached. The camera is entered with the microscope. The microscope also
includes a specimen stage, a mirror for illuminating specimens from
below by means of an integral light source, and additional optical
elements. Thus, the deluxe microscope meets the description of a
"compound optical microscope" that permits the photographic recording of
magnified images.

Chapter 90, Legal Note 1, in pertinent part, provides that the chapter
"does not cover: (k) Articles of Chapter 95\[.\]" Heading 9503, HTSUS,
provides for "\[o\]ther toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all kinds; parts and
accessories thereof\[.\]"

EN 95.03(A) provides, in pertinent part, for:

> "\[c\]ertain toys (*e.g.,* electric irons, sewing machines, musical
> instruments, etc.) may be capable of a limited "use"; but they are
> generally distinguishable by their size and limited capacity from real
> sewing machines, etc.
>
> Collections of articles, the individual items of which if presented
> separately would be classified in other headings in the Nomenclature,
> are classified in this Chapter when they are put up in a form clearly
> indicating their use as toys (*e.g.,* instructional toys such as
> chemistry, sewing, etc., sets)."

At GRI 1, the subject microscope is classifiable under subheading
9011.20.40, HTSUS, which provides for "\[c\]ompound optical microscopes,
including those for photomicrography, cinemicrography or
microprojection; parts and accessories thereof: Other microscopes, for
photomicrography, cinemicrography or microprojection: Provided with a
means for photographing the image\[.\]"

The other articles included in the **"deluxe microscope kit"** are each
described under different headings. For example, heading 7017, provides,
in pertinent part, for specimen slides or covers, of glass. Heading
8203, provides, in pertinent part, for files, rasps, and tweezers.
Heading 8524, provides, in pertinent part, for other recorded media for
sound or other similarly recorded phenomena. Heading 9002, provides, in
pertinent part, for lenses, prisms, mirrors and other optical elements,
of any material, mounted, being parts of or fittings for instruments or
apparatus. Heading 9004, provides, in pertinent part, for spectacles,
goggles and the like, corrective, protective or other.

GRI 2(a) is not applicable, however GRI 2(b) provides, in pertinent
part, that "\[t\]he classification of goods consisting of more than one
material or substance shall be according to the principles of Rule 3."

GRI 3 provides, "when, by application of Rule 2(b) or for any other
reason, goods are, *prima facie*, classifiable under two or more
headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be
    preferred to headings providing a more general description. However,
    when two or more headings each refer to part only of the materials
    or substances contained in mixed or composite goods or to part only
    of the items in a set put up for retail sale, those headings are to
    be regarded as equally specific in relation to those goods, even if
    one of them gives a more complete or precise description of the
    goods.

(b) Mixtures, composite goods consisting of different materials or made
    up of different components, and goods put up in sets for retail
    sale, which cannot be classified by reference to 3(a), shall be
    classified as if they consisted of the material or component which
    gives them their essential character, insofar as this criterion is
    applicable."

The EN to GRI 3(b) indicates that to meet the criteria of a set put up
together for retail sale, "articles must:

(a) consist of at least two different articles, which are, *prima
    facie*, classifiable in different headings;

(b) consist of products or articles put up together to meet a particular
    need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without
    repacking (e.g., in boxes or cases or on boards)."

Applying the GRI 3(b) EN criteria, the over 30 different articles
presented with the "deluxe microscope" are, *prima facie*, classifiable
in different headings. The goods work together to carry out the specific
activity of viewing specimens under the microscope.

The microscope is imported and packaged together, with a camera and all
of the goods listed above, in a plastic carrying case for retail sale.
The protestant's "selling features list," and advertisement picturing
the set confirm this. Under these facts, the articles meet all three
criteria of the GRI 3(b) EN, and therefore, form a set put up for retail
sale.

To be classified at GRI 3(b), the set must be classifiable as if the set
consisted of the one article that gives the whole its "essential
character," insofar as this criterion is applicable. EN VIII to GRI 3(b)
provides that the characteristic which gives a set its "essential
character" 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.

In this case, the specimen slides (classifiable in heading 7017), the
tweezers (classifiable in heading 8203), the CD software (classifiable
in heading 8524), and the microscope (classifiable in heading 9011), all
support the use of the microscope for scientific study. The microscope
is the most important article in achieving this central purpose. It is
also the most valuable article, in terms of marketability for the
importer, and in terms of utility for the consumer. As such, we conclude
that it imparts the "essential character" of the set.

At GRI 3(b) we find that the **"deluxe microscope" set, model 1W29R**,
is described in subheading 9011.20.40, HTSUS, which provides for
"\[c\]ompound optical microscopes, including those for photomicrography,
cinemicrography or microprojection; parts and accessories thereof: Other
microscopes, for photomicrography, cinemicrography or microprojection:
Provided with a means for photographing the image\[.\]"

Our determination is supported by New York Ruling ("NY") E80530, dated
April 13, 1999, which classified a compound optical microscope with
multiple high powered objectives, an eyepiece with a length of tube that
provided additional magnification, microphoto apparatus, microviewer,
projector, drawing device, specimen stage, mirror and light in
subheading 9011.20.40, HTSUS.

The subject entries were liquidated in September and October, 2001. In
2001, Legal Note 6 to Chapter 85, HTSUS, provided that: \"\[r\]ecords,
tapes and other media of heading 8523 or 8524, HTSUS, remain classified
in those headings, whether or not they are entered with the apparatus
for which they are intended.\" In classifying GRI 3 retail sets
containing media of heading 8523 or 8524 Customs interpreted Legal Note
6 to Chapter 85 (2001), as requiring that software must be broken out
from a retail set and classified separately. *See* Headquarters' Rulings
("HQs") 952154 dated November 17, 1992, and 950925 dated May 12, 1992.
In these situations, classifying the media separately did not destroy
the GRI 3 retail set. Therefore, the media remains classifiable under
subheading 8524.39.40, HTSUS, as "\[r\]ecords, tapes and other recorded
media for sound or other similarly recorded phenomena, including
matrices and masters for the production of records, but excluding
products of chapter 37: Other: For reproducing representations of
instructions, data, sound and image, recorded in a machine readable
binary form, and capable of being manipulated or providing interactivity
to a user, by means of an automatic data processing machine; proprietary
format recorded discs."

I.  **Maxscope**, **Model 1W62Y:**

The **maxscope kit** includes the "maxscope viewing unit. Based on the
information provided, the "maxscope" is a magnifying viewer in a plastic
housing, with a 8 3/8-inch diagonal display." Its display screen
projects an enlarged image of selected objects that fit on a slide
placed under the viewer lens. The "maxscope" combines lenses of
relatively low magnification, 20x, 40x, 60x, and 80x, with a focus knob
and a viewing monitor, and a specimen stage. It has neither a lens
eyepiece, nor a lens tube. It has no secondary level of magnification
described in EN 90.11. The kit includes two prepared slides, ten blank
slides, tweezers, stirring rod, dropper, two collecting vials, petri
dish, labels, various specimens and a spare light bulb. Protestant seeks
classification under heading 9503, HTSUS, which covers "other toys."

As noted above, heading 9011, HTSUS, covers "\[c\]ompound optical
microscopes; other microscopes, for photomicrography, cinemicrography or
microprojection; parts and accessories thereof\[.\]"

Heading 9503, HTSUS, provides for "\[o\]ther toys; reduced-size
("scale") models and similar recreational models, working or not;
puzzles of all kinds; parts and accessories thereof\[.\]" We must
determine whether the "maxscope" is classifiable as a toy for tariff
purposes. If so, it is excluded from classification under heading 9011
by operation of Note 1(k) to Chapter 90.

Unlike the "deluxe microscope" above, the "maxscope" does not have a
lens eyepiece or an identifiable lens tube. All slides are placed on the
maxscope's specimen "stage," and viewed on the display viewer screen,
and not through an eyepiece and lens tube. Therefore, the maxscope does
not meet the description of compound optical microscopes provided in EN
90.11. It is not *prima facie* excluded from heading 9503, HTSUS.

Although the term "toy," in general, is not specifically defined in the
tariff, the ENs to Chapter 95, HTSUS, indicate that "this Chapter covers
toys of all kinds whether designed for the amusement of children or
adults." It has been Customs position that the amusement requirement
means that toys should be designed for amusement and that evidence be
provided to demonstrate it is used principally for amusement. *See*
Additional U.S. Rule of Interpretation 1(a), HTSUS.

In the tariff context, "amuse" is mainly used in contrast to some
utilitarian or functional quality and the focus is not how the toys are
used, but whether they are **designed** to amuse. The maxscope is
designed, with its plastic housing and display screen, to provide
interactive, manipulative play and amusement to the child and adult
utilizing it. It is designed to provide creative opportunities for an
adult to assist a child, or a child alone, to "play scientist," and
learn something about biologic science in the process. The "maxscope" is
advertised as a way to "\[e\]ncourage your child's inquisitive nature
with . . . fun\[.\]" It is clearly not designed to study and observe
objects for laboratory research or industrial purposes.

At GRI 1, the "maxscope" is classifiable under subheading 9503.90.00,
HTSUS, which provides for "\[o\]ther toys; reduced-size ("scale") models
and similar recreational models, working or not; puzzles of all kinds;
parts and accessories thereof: Other\[.\]"

The other articles included in the **"maxscope kit"** are each described
under a different heading. For example, heading 7017, in pertinent part,
provides for specimen slides or covers, of glass. Heading 8203, in
pertinent part, provides for files, rasps, and tweezers. Heading 8539,
in pertinent part, provides for electrical filament or discharge lamps
(light bulbs).

Each of the goods listed is a complete article imported together with
the "maxscope." They are not classifiable together under the same
heading according to GRI 1. GRI 2(a) is not applicable. As previously
noted, GRI 2(b) provides, that "\[t\]he classification of goods
consisting of more than one material or substance shall be according to
the principles of Rule 3." Insofar as two or more headings, each refer
to part only of the items, GRI 3(a) does not apply, and we must
determine if the goods constitute a "set put up for retail sale" at GRI
3(b)."

Applying the GRI 3(b) EN criteria set forth above, these several
articles are *prima facie*, classifiable in different headings. They
work together to support the use of the "maxscope" for the amusement of
children and adults in creative play as biologic scientists.

The goods listed above are imported and packaged together for retail
sale with the "maxscope." The protestant's "selling features list," and
advertisement picturing the set confirm this. Under these facts, the
articles meet all three criteria of the GRI 3(b) EN, and therefore, form
a set put up for retail sale.

Again, to be classified at GRI 3(b), the set must be classifiable as if
the set consisted of the one article that gives the whole its "essential
character," insofar as this criterion is applicable. EN VIII to GRI 3(b)
provides that the characteristic which gives a set its "essential
character" 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.

In this case, the specimen slides (classifiable in heading 7017), the
tweezers (classifiable in heading 8203), and the "maxscope"
(classifiable in heading 9503), all support the use of the "maxscope"
for creative fun with biological scientific discovery. It is clear that
the "maxscope" is the most important article in achieving this central
purpose. The maxscope" is also the most valuable article, in terms of
marketability for the importer, and in terms of utility for the
consumer. As such, we conclude that it imparts the "essential character"
of the set.

At GRI 3(b) we find that the **"maxscope set," model 1W62Y**, is
described in subheading 9503.90.00, HTSUS, which provides for "\[o\]ther
toys; reduced-size ("scale") models and similar recreational models,
working or not; puzzles of all kinds; parts and accessories thereof:
Other\[.\]"

Our determination is supported by New York Rulings ("NY") G83729, dated
November 20, 2000; NY G83542, dated November 13, 2000, NY F80421, dated
December 17, 1999; NY A82638, dated May 9, 1996; and NY 811497, dated
July 10, 1995. In all five of these decisions Customs determined that
toy magnifying viewers or microscopes, packaged for retail sale with
several articles similar to those packaged with the "maxscope," were
classifiable under subheading 9503.90.00, HTSUS.

As noted above, the entries of both sets were liquidated as entered
under subheading 9011.80.00, HTSUS. The rates of duty for subheadings
9011.20.40, HTSUS, (model 1W29R -- deluxe microscope), and 9503.90.00,
HTSUS, (model 1W62Y - maxscope), are less than the rate for subheading
9011.80.00, HTSUS.

**HOLDING:**

At GRI 3(b), the "**deluxe microscope set," model 1W29R**, is
classifiable under subheading 9011.20.40, HTSUS, which provides for
"\[c\]ompound optical microscopes, including those for photomicrography,
cinemicrography or microprojection; parts and accessories thereof: Other
microscopes, for photomicrography, cinemicrography or microprojection:
Provided with a means for photographing the image\[.\]"

At GRI 1, pursuant to Chapter 85, Legal Note 6, HTSUS, the CD software
packaged with the **"deluxe microscope set"** is classifiable under
subheading 8524.39.40, which provides for "\[r\]ecords, tapes and other
recorded media for sound or other similarly recorded phenomena,
including matrices and masters for the production of records, but
excluding products of chapter 37: Other: For reproducing representations
of instructions, data, sound and image, recorded in a machine readable
binary form, and capable of being manipulated or providing interactivity
to a user, by means of an automatic data processing machine; proprietary
format recorded discs\[.\]"

At GRI 3(b), the **"maxscope set," model 1W62Y**, is classifiable under
subheading 9503.90.00, HTSUS, which provides for "\[o\]ther toys;
reduced-size ("scale") models and similar recreational models, working
or not; puzzles of all kinds; parts and accessories thereof: Other\[.\]"

Since the reclassification of the merchandise as indicated above, will
result in a lower rate of duty than claimed, you are instructed to
**ALLOW** the protest **IN FULL.**

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the decision the
Office of Regulations and Rulings will make the decision available to
Customs personnel, and to the public on the Customs Home Page on the
World Wide Web at www.customs.treas.gov, by means of the Freedom of
Information Act, and other methods of public distribution.

> Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division