HQ 954640

October 25, 1994

CLA-2 CO:R:C:M 954640 LTO

CATEGORY: Classification

TARIFF NO.: 9011.20.80; 9011.80.00

Regional Commissioner of Customs

c/o Protest and Control Section

6 World Trade Center

Room 761

New York, New York 10048-0945

RE: Protest 1001-93-101806; Axioskop upright microscopes; Axiovert

inverted microscopes; binocular phototube; binocular tube;

HQs 085754, 088121; \"provided with a means for photographing

the image;\" subheading 9011.20.40; U.S. v. Hannevig;

Michaelian & Kohlberg, Inc. v. U.S.

Dear Regional Commissioner:

The following is our decision regarding Protest 1001-93-

101806, which concerns the classification of Axioskop 50 upright

microscopes (Axioskop H DIC and Axioskop HD DIC) and Axiovert

inverted microscopes (Axiovert 100, 135, 405) under the Harmonized

Tariff Schedule of the United States (HTSUS). The subject

merchandise was entered on September 30, 1992, and the entry was

liquidated on February 5, 1993. The protest was timely filed on

April 1, 1993.

FACTS:

The articles in question are Axioskop 50 upright microscopes

(Axioskop H DIC and Axioskop HD DIC) and Axiovert inverted

microscopes (Axiovert 100, 135, 405). The microscopes are imported

with either a binocular tube or binocular phototube. A binocular

tube consists of two parallel eyepieces, while a binocular

phototube consists of two parallel eyepieces and a separate

vertical port to which a camera body, or specially designed

microscope camera, may be attached.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100

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microscopes, when imported with a binocular tube, are not capable

of photomicrography, as the binocular phototube is necessary for

documentation. When imported with the binocular phototube, the

Axioskop H DIC, Axioskop HD DIC and Axiovert 100 microscopes

incorporate all internal photographic optical elements necessary

for documentation at the time of importation.

On the other hand, the Axiovert 135 and 405 microscopes

incorporate all necessary internal photographic optics, as well as,

a separate port to which a camera body, or specially designed

microscope camera, may be attached (some models have additional

ports for video, etc.). While they are generally imported with a

binocular phototube, one is not necessary for documentation.

Counsel for the protestant states that the practice of

importing microscopes configured with internal photographic optics

is the current norm. Previously, a camera containing all the

necessary optical elements would be mechanically affixed to a

standard microscope that had no internal photographic optics.

The Axioskop H DIC and Axioskop HD DIC microscopes can be used

with any of four different binocular phototubes, selection of which

is dependent upon the amount of light desired for photography or

for observation. A prism determines which exit port (either

observation or for photography) gets what percentage of light. The

binocular phototubes also have options for light splitting, and are

application-driven. The microscopes are imported with other

intermediate elements, including tubes with optics, and sometimes

with the mechanical devices necessary to attach a camera body or

specially designed microscope camera.

The Axioskop HD DIC microscope differs from the Axioskop H

DIC, in that the former is configured for \"dark field\" (hence the

\"HD\") applications where the specimen appears white on a black

background, so that the user can see defects in that specimen.

Because the Axioskop HD DIC microscope is designed for material

science appliances, where the specimen is generally opaque (light

cannot travel through it), the light comes from above the specimen.

On the other hand, in a microscope configured for biological

applications, where the specimen is generally translucent, the

light comes from below the specimen. The primary physical

difference between the two Axioskop microscopes is that the

Axioskop HD DIC microscope uses a special, extra wide objective

that screws into its nosepiece.

The Axiovert 100, 135 and 405 are inverted microscopes. In

inverted microscopes, light travels from above the specimen in \"U\"-

shape, below, and then up through, the specimen.

All of the microscopes were entered as compound optical

microscopes, for photomicrography, provided with a means for

photographing the image, under subheading 9011.20.40, HTSUS. The

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Axioskop H DIC and Axioskop HD DIC microscopes were classified upon

liquidation as other compound optical microscopes, for

photomicrography, under subheading 9011.20.80, HTSUS, while the

Axiovert 100, 135 and 405 microscopes were classified as other

compound optical microscopes, under subheading 9011.80.00, HTSUS.

ISSUE:

Whether microscopes imported without camera bodies, but with

all internal photographic optics necessary for photographing an

image, can be classified as other compound optical microscopes, for

photomicrography, provided with a means for photographing the

image, under subheading 9011.20.40, 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 that \"for legal purposes, classification

shall be determined according to the terms of the headings and any

relative section or chapter notes . . . .\"

The Axioskop H DIC, Axioskop HD DIC, and Axiovert 100, 135 and

405 microscopes are classifiable under heading 9011, HTSUS, which

provides for \"\[c\]ompound optical microscopes, including those for

photomicrography, cinemicrography or microprojection; parts and

accessories thereof.\" However, the following subheadings are at

issue:

9011.20 Other microscopes, for photomicrography,

cinemicrography or microprojection:

9011.20.40 Provided with a means for photographing

the image (4.9% ad valorem)

\* \* \* \* \* \* \* \* \* \* \* \* \*

9011.20.80 Other (9% ad valorem)

\* \* \* \* \* \* \* \* \* \* \* \* \*

9011.80.00 Other microscopes (8% ad valorem)

Compound optical microscopes for photomicrography,

cinemicrography or microprojection are classifiable in one of two

subheadings: subheading 9011.20.40 and 9011.20.80, HTSUS.

Compound optical microscopes \"provided with a means for

photographing the image\" are classifiable under subheading

9011.20.40, HTSUS, while those not so provided are classifiable

under subheading 9011.20.80, HTSUS. Compound optical microscopes,

other than stereomicroscopes (subheading 9011.10, HTSUS), that are

not for photomicrography, cinemicrography or microprojection are

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classifiable under subheading 9011.80.00, HTSUS.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100

microscopes require the presence of a binocular phototube to be

capable of photomicrography. Thus, those that are imported with a

binocular tube, rather than a binocular phototube, are classifiable

under subheading 9011.80.00, HTSUS, as they are not \"for

photomicrography.\" The Axioskop H DIC, Axioskop HD DIC and

Axiovert 100 microscopes imported with binocular phototubes are

\"for photomicrography,\" and are classifiable under subheading

9011.20, HTSUS.

While the presence of a binocular phototube leads to the

conclusion that a particular microscope is \"for photomicrography\"

(subheading 9011.20, HTSUS), the absence of the binocular phototube

does not necessarily mean that the device is classifiable under

subheading 9011.80.00, HTSUS. The Axiovert 135 and 405

microscopes, for example, do not require the presence of a

binocular phototube to be capable of photomicrography, as both

contain a separate port to which a camera body, or specially

designed microscope camera, may be attached. These microscopes,

whether imported with a binocular phototube or binocular tube, are

classifiable under subheading 9011.20, HTSUS.

After determining that a particular microscope is covered by

subheading 9011.20, HTSUS, it is then necessary to consider whether

that microscope is, at the time of importation, \"provided with a

means for photographing the image.\" See United States v. Hannevig,

T.D. 38384, Michaelian & Kohlberg, Inc. v. United States, T.D.

47554\. If so, the microscope is classifiable under subheading

9011.20.40, HTSUS. If not, it is classifiable under subheading

9011.20.80, HTSUS.

Counsel for the protestant argues that the Axioskop H DIC,

when imported with a binocular phototube, and other similarly

configured microscopes, have been provided with a means for

photographing an image. As imported, counsel contends, the

microscopes are capable of photographing an image, \"the only items

lacking are the film holder \[camera body\] and photographic film.\"

Counsel states that, by its express terms, subheading 9011.20.40,

HTSUS, does not require a camera to be attached to, or imported

with, the microscope, for it to be classified as one, \"provided

with a means for photographing the image.\"

It is Customs position that while subheading 9011.20.40,

HTSUS, does not expressly require the presence of a camera or

camera body, a microscope that cannot, effectively, take a picture

without the use of a camera body and is imported without the camera

body, is not \"provided with a means for photographing the image.\"

This position is derived from the Harmonized Commodity Description

and Coding System Explanatory Note to heading 9011, HTSUS, and the

text of subheading 9011.20.40, HTSUS.

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EN 90.11, pg. 1476, describes the microscopes for

photomicrography and microscopes for cinephotomicrography of

heading 9011, HTSUS, as follows:

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.

EN 90.11 describes two types of microscopes for

photomicrography: (1) a microscope permanently incorporating a

photographic camera; or (2) a microscope to which a conventional

photographic camera can be temporarily fixed by means of a simple

attachment. These microscopes are classifiable under subheading

9011.20, HTSUS.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100

microscopes, imported with the binocular phototube, and the

Axiovert 135 and 405 microscopes, are combinations of the two types

described in EN 90.11. While they do not permanently incorporate

a photographic camera, both incorporate the necessary, internal

photographic optics. They are used primarily in conjunction with

a conventional photographic camera body, or specially designed

microscope camera. Thus, as stated above, the Axioskop H DIC,

Axioskop HD DIC and Axiovert 100 microscopes, with binocular

phototube, and the Axiovert 135 and 405 microscopes are

classifiable under subheading 9011.20, HTSUS.

Returning to the examples found in EN 90.11, a microscope

that, at the time of importation, permanently incorporates a

photographic camera is \"provided with a means for photographing the

image.\" Similarly, a microscope that is imported with a

photographic camera (and any necessary attachments) is also

\"provided with a means.\" Thus, both of these examples would be

classified under subheading 9011.20.40, HTSUS. However, a

microscope imported with the attachments necessary to affix a

photographic camera, but without the camera, while still a

microscope for photomicrography, is not \"provided with a means.\"

This microscope cannot be classified under subheading 9011.20.40,

HTSUS, and is classifiable under subheading 9011.20.80, HTSUS.

Similarly, it is our position that microscopes imported with

all internal photographic optics necessary for photographing an

image, but without a camera body or specially designed microscope

camera, is not \"provided with a means for photographing the image,\"

and cannot be classified under subheading 9011.20.40, HTSUS. This

position was reflected in HQ 085754 and HQ 088121.

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In HQ 085754, dated December 26, 1994, Customs considered the

classification of three microscopes, the JENA LABOVAL 4 transmitted

light microscope, JENA GSM stereomicroscope and JENA GSZ

stereomicroscope. The GSM and GSZ stereomicroscopes were

classified under subheading 9011.10.80, HTSUS, which provides for

other stereoscopic microscopes, while the LABOVAL 4 transmitted

light microscope was classified under subheading 9011.20.80, HTSUS,

which, as stated above, provides for other microscopes for

photomicrography.

Counsel for the protestant states that HQ 085754 cites facts

which are in error, and should not be applied to the microscopes in

question. The errors, according to counsel, are as follows: (1)

the ruling states that the LABOVAL 4, which is a transmitted light

microscope, is also \"a type of reflected light microscope,\" when

the microscope is simply a transmitted light microscope; (2) the

ruling states that stereomicroscopes, such as the GSM and GSZ, are

\"more sophisticated optical microscope\[s\],\" when stereomicroscopes

are not necessarily more sophisticated; (3) the ruling states that

the three microscopes have binocular phototubes (\"trinocular

eyepieces\"), when only the LABOVAL 4 could be imported with the

binocular phototubes; and (4) the ruling states that the

microscopes only need a t-tube adapter and a T-mount ring to attach

a 35 mm camera, when the microscopes often require various

intermediate pieces, usually containing optical elements beyond the

binocular phototube before a camera body can be attached.

With regard to HQ 085754, it is our opinion that any factual

discrepancies that may be contained in the ruling are inadvertent

and relatively insignificant, and, more importantly, did not affect

the classification of the three microscopes in question. The

LABOVAL 4 is a transmitted light microscope imported with binocular

phototubes and various intermediate elements, but without a camera

body. It is therefore classifiable under subheading 9011.20.80,

HTSUS, as it is a microscope for photomicrography that is not

\"provided with a means for photographing the image.\" The GSM and

GSZ stereomicroscopes, whether more or less sophisticated optical

microscopes, cannot be fitted with binocular phototubes, and are

therefore classifiable under subheading 9011.10.80, HTSUS, as

stereoscopic microscopes that are not \"provided with a means.\"

Similarly, in HQ 088121, dated February 26, 1991, compound

optical microscopes incorporating a vertical viewing tube, which

facilitated the mounting of a camera for photomicrography, were

classified under subheading 9011.20.80, HTSUS, as the cameras were

not a part of the importation. In HQ 088121, we reiterated our

holding in HQ 085754 that \"a compound optical microscope capable of

photomicrography, but which was imported without the device for

photographing an image\" cannot be classified under subheading

9011.20.40, HTSUS. HQ 085754 and HQ 088121 reflect our current

position regarding the classification of microscopes under heading

9011, HTSUS.

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Counsel for the protestant argues that the ENs to headings

9006 (photographic cameras) and 9007 (cinematographic cameras),

HTSUS, support his position that subheading 9011.20.40, HTSUS, does

not require a camera to be attached to, or imported with, the

microscope for it to be classified as one, \"provided with a means

for photographing the image.\"

EN 90.06, pg. 1468, states that heading 9006, HTSUS, \"does not

apply to apparatus consisting of an instrument equipped to record

images by photographic means, but essentially designed for some

other purpose, e.g., a telescope, microscope, spectrograph,

stroboscope.\" EN 90.07, pg. 1469, states that this portion of EN

90.06 applies to the cinematographic cameras of heading 9007,

HTSUS. Thus, a microscope, such as one that permanently

incorporates a photographic camera (EN 90.11) would not be

classified as a photographic camera under heading 9006, HTSUS, but

as a microscope for photomicrography under heading 9011, HTSUS.

EN 90.06, pg. 1468, then states that \"\[a\] camera presented

separately, however, even if it is a specialised part of another

instrument (telescope, microscopes, spectrograph, photo-theodolite,

stroboscope, etc.) is classified in this heading and not as a part

of that instrument.\" Thus, the photographic camera that can be

temporarily attached to a microscope, such as the one described in

EN 90.11, when imported separately, would be classifiable under

heading 9006, HTSUS, rather than 9011, HTSUS. See also EN 90.11,

pg. 1476, which states that \"\[s\]eparately presented photographic or

cinematographic cameras for photomicrography or

cinephotomicrography are excluded (heading 90.06 or 90.07

respectively) \[emphasis in original\].\"

Counsel states that the clear impact of EN 90.06 and EN 90.07

is that \"microscopes themselves are recognized as being internally

equipped for, and capable of, photography or cinematography and

that, but for the clear direction of the Notes, those microscopes

might otherwise be classifiable as \'cameras\' under headings 90.06

or 90.07.\" We disagree, and believe that EN 90.06 and EN 90.07 are

in line with our interpretation of EN 90.11.

Finally, counsel for the protestant has consistently stated

that the camera bodies used with the Axioskop H DIC and Axiovert

135 microscopes are not necessary to take photographs. The

microscopes, when fitted with binocular phototubes and other

intermediate elements, are technically capable of taking a picture

without the camera body (by holding the film in hand or by taping

it to the wall), or with the addition of an aluminum beverage can.

However, when asked whether one would use these sophisticated

microscopes without a camera body, counsel stated as follows:

In one foreseeable application, a laboratory might have

many different types of microscopes (upright, inverted,

fluorescence, stereo) close to hand to meet different

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needs. It is not uncommon for such laboratories to have

all such scopes individually fitted with binocular

phototubes, but arranged to share a common film or video

camera. The camera attachment is moved from one

microscope to another \[underlining added\].

Thus, all of the microscopes in this application would be

provided with a camera body to photograph an image. The language

of subheading 9011.20.40, HTSUS, does not mean \"provided with a

means\" in the abstract, but actually \"provided\" and used in that

manner. A microscope of subheading 9011.20.40, HTSUS, must be

capable, upon importation, of photographing an image in the manner

that it will photograph an image after importation in the United

States. It seems incongruous to hold that a sophisticated,

research-grade microscope is \"provided with a means\" because one

can technically take a picture without a camera body (i.e., by

holding the film in hand or with a tin can), when in fact, a camera

body will be used.

In fact, in most instances, a specially designed microscope

camera will be used. These specially designed cameras are

generally used with research-grade microscopes because they provide

consistent, quality results. Their benefits include a special

exposure control system, special arrangements to ensure exact focus

and less recoil than in a standard camera (recoil destroys

sharpness, especially in a magnified picture).

The Axioskop H DIC and Axioskop HD DIC microscopes, when

imported with binocular phototubes, and Axiovert 135 and 405

microscopes are provided with a means to accept a camera body or

specially designed microscope camera, but are not provided with a

means for photographing the image. Accordingly, these microscopes

are classifiable under subheading 9011.20.80, HTSUS.

HOLDING:

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100

microscopes, imported with binocular tubes, are classifiable under

subheading 9011.80.00, HTSUS.

The Axioskop H DIC, Axioskop HD DIC and Axiovert 100

microscopes, imported with binocular phototubes, and the Axiovert

135 and 405 microscopes, imported with binocular tubes or binocular

phototubes, are classifiable under subheading 9011.20.80, HTSUS.

Accordingly, the protest should be GRANTED with regard to the

Axioskop H DIC and Axioskop HD DIC microscopes, with binocular

tubes, but DENIED with regard to the Axiovert 100 microscopes, with

binocular tubes, and the Axioskop H DIC and Axioskop HD DIC

microscopes, with binocular phototubes. The protest should also be

DENIED with regard to the Axiovert 100 microscopes, with binocular

phototubes, and the Axiovert 135 and 405 microscopes, with either

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binocular phototubes or binocular tubes, since the rate of duty

under the classification indicated above is more than the

liquidated rate.

In accordance with section 3A(11)(b) of Customs Directive 099

3550-065, dated August 4, 1993, Subject: Revised Protest Directive,

this decision, together with the Customs Form 19, should be mailed

by your office 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 the mailing of the

decision. Sixty days from the date of the decision the Office of

Regulations and Rulings will take steps to make the decision

available to customs personnel via the Customs Rulings Module in

ACS and the public via the Diskette Subscription Service, Freedom

of Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division