CLA-2 CO:R:C:M 954362 DWS

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

RE: Surgical Microscope; Compound Optical Microscope; Explanatory Note 90.11; 9011.80.00

Dear Mr. Wallace:

This is in response to your letter of May 11, 1993, to the Chief, Customs Information Exchange, on behalf of Moeller Microsurgical, Inc., concerning the classification of a surgical microscope under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter has been referred to Headquarters for a reply.

FACTS:

The merchandise consists of a binocular surgical microscope, used by surgeons when operating on a very small area of the body. It 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:

9011.80.00: [c]ompound optical microscopes, including those for photomicography, cinemicrography or microprojection; parts and accessories thereof: [o]ther microscopes.

The general, column one rate of duty is 8 percent ad valorem.

9018.90.20: [i]nstruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories thereof: [o]ther instruments and appliances and parts and accessories thereof: [o]ther.

The general, column one rate of duty is 10 percent ad valorem.

ISSUE:

Whether the surgical microscope is classifiable under subheading 9011.80.00, HTSUS, as an other microscope, or under subheading 9018.90.20, HTSUS, as an other optical instrument used in surgical science?

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.

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. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 90.11 (pp. 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 . . .

It is our position that, based upon the description given in Explanatory Note 90.11, the surgical microscope is not a compound optical microscope. It does not have a second stage of magnification for the observation of an already magnified image of an object. The microscope is used to perform microsurgery on a human body; it is not used to study and observe a certain object for laboratory research or industrial purposes. Also, the surgical microscope does not possess a specimen stage or an objective holder.

Therefore, because the surgical microscope is not described under heading 9011, HTSUS, we find that it is classifiable under subheading 9018.90.20, HTSUS, as an other optical instrument used in surgical science.

HOLDING:

The surgical microscope is classifiable under subheading 9018.90.20, HTSUS, as an other optical instrument used in surgical science.

Sincerely,

John Durant, Director
Commercial Rulings Division