Carl Zeiss, Inc. v. U.S.
| Decision Date | 23 June 1998 |
| Docket Number | Slip Op. 98-86.,Court No. 95-11-01456. |
| Citation | 16 F.Supp.2d 1097 |
| Parties | CARL ZEISS, INC., Plaintiff, v. The UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Mark K. Neville, Jr., New York City, for Plaintiff.
Frank W. Hunger, Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office; Civil Division, Dept. of Justice, Commercial Litigation Branch (Barbara M. Epstein), and Office of Assistant Chief Counsel, International Trade Litigation, United States (Chi Choy), Washington, DC, for Defendant.
The court has before it cross-motions for summary judgment regarding imported microscopes and parts or accessories thereof imported in 1994 and 1995 from Germany by Carl Zeiss, Inc. (hereinafter referred to as "Zeiss").
The merchandise was classified under Heading 9011 of the Harmonized Tariff Schedules of the United States ("HTSUS"), specifically under subheading 9011.10.40, as "compound optical microscopes ... stereoscopic microscopes: Provided with a means for photographing the image." The parts and accessories were classified under subheading 9011.90.00, HTSUS, as "parts and accessories."
Zeiss claims the microscopes are properly classifiable under Heading 9018, which provides for "instruments and appliances used in medical, surgical, dental or veterinary sciences ...," specifically, under subheading 9018.90.20, providing for such instruments or appliances "other" than "optical instruments and appliances and parts and accessories thereof." Zeiss also claims that certain parts and accessories (such as the "Ram/Eprom" and "certain disks") are classifiable under Heading 8542 or 8524, respectively.
The competing provisions, as they appear in the HTSUS are as follows:
Classified
9011 Compound optical microscopes, including
those for photomicrography
cinemicrography or microprojection
parts and accessories thereof
9011.10 Stereoscopic microscopes:
9011.10.40 Provided with a means for
photographing the image
9011.10.80 Other
Claimed:
9018 Instruments 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...
9018.90 Other instruments and appliances
and parts and accessories thereof:
9018.90.10 Mirrors and reflectors
9018.90.20 Other
For purposes of resolving these motions the Court finds that there are no material issues of fact in the case. The imported microscopes are stereoscopic compound optical microscopes principally used as medical or surgical instruments or appliances and parts thereof.
In a nutshell, the legal issue before the court is whether the imported microscopes should be classified as compound optical microscopes under Heading 9011 or as instruments used in surgery under Heading 9018.
Briefly stated, Plaintiff argues that the merchandise is not described by the common or commercial meaning of the term "compound optical microscope." Plaintiff further argues that Heading 9018 is more specific than Heading 9011 and therefore more accurately describes the importations. Plaintiff also argues that the classification of microscopes such as those before the Court is controlled by a previous decision of the Court.
There is no question that the imported microscopes have special design features to make them particularly useful for surgery. These include magnification levels that are considerably lower than those of microscopes used for laboratory or industrial purposes, specially configured stands and movement mechanisms designed to aid hands-free use in surgery, built in co-axial sources of illumination (as opposed to the separate light sources usually placed underneath the object in microscopes used for laboratory or industrial purposes), and a notable difference in price in which these importations are approximately 10 times more costly than compound optical microscopes used for non-surgical purposes. These importations also do not have the platform usually found under the lenses of a conventional microscope.
The Government argues that the importations are properly classifiable under Heading 9011 because they are within the meaning of compound optical microscopes even though they may be used for surgical purpose. The Government points to Explanatory Note 90.18 and argues that by providing that Heading 90.18 does not cover "microscopes of Heading 90.11," they are classifiable under Heading 9011 even if such instruments are used in surgery.
In a straightforward comparison of the relative specificity of these two provisions, the Court finds that the tariff description of these microscopes by the actual details of their distinctiveness within the field of microscopes is more precise than their description as belonging to the general class of instruments used for surgical or medical purposes.
Zeiss argues that Heading 9018 is more specific than Heading 9011 because of the general rule that "use" provisions are more specific than eo nomine provisions. But that is not really a rule. It is an aid to deciding between provisions when their degree of relative specificity is not otherwise significantly distinguishable. Thus, in the venerable case of U.S. v. Snow's United States Sample Express Co., 8 Cust.App. 351 (1918) the Court of Customs Appeals held that, with respect to scalloped madras muslin curtains, a tariff provision for all scalloped fabrics, even though it specified "by whatever name known" was not as specific as a tariff provision for curtains. One can say that "scalloped fabrics" and "curtains" were both rather general terms but the latter had the additional virtue of describing the importation by use. Similarly, in E.M. Chemicals v. United States, 9 Fed. Cir. (T) 33, 920 F.2d 910 (1990) the Court of Appeals for the Federal Circuit held that liquid crystals were more accurately described by their use as parts of indicator panels or other visual signaling apparatus than by a residual provision for "chemical mixtures." There too, the precision of the competing provisions was not great and use could certainly play a deciding role.
Plaintiff, with commendable candor, acknowledges that there are other court decisions indicating that giving preference to a use provision over an eo nomine description is not an ironclad rule. Plaintiff points to Totes, Inc. v. United States, 14 Fed. Cir. (T) ___, 69 F.3d 495 (1995) citing United States v. Electrolux Corp. 46 C.C.P.A. 143, 147 (1959).
In the Electrolux case the court held that electrical floor polishers were more specifically described by their structure as articles having an essential electrical element rather than by their use as "household utensils." In the Totes case it was held that a so-called "organizer" used to store items in an automobile trunk was properly classifiable under a provision for trunks "and similar containers" an eo nomine provision, rather than by their use as "parts and accessories" of motor vehicles.
In reviewing these cases and in considering the question of relative specificity insofar as it involves a contest between a provision by use and a provision by name, it becomes apparent that there is no firm doctrine giving priority to a use provision. It is worth quoting the analysis of this point set out in United States v. Electrolux Corp. at 46 CCPA 147:
While it is true that this court and its predecessor on many occasions have held that a use provision should prevail over some other, and have used the word "doctrine" in referring to the "doctrine of use," an examination of a sufficient number of cases will show that this so-called doctrine is subject to "exceptions" whenever it comes into conflict either with a clearly expressed legislative intent or a competing provision which is obviously more specific than the "use" provision, as applied to the merchandise at bar. Actually, the "doctrine" appears to be a convenient rule of thumb for resolving issues where the competing provisions are otherwise in balance.
It appears to the Court that ambit of Heading 9018 is quite analogous to that of the provision for household utensils involved in United States v. Electrolux Corp. Both provisions display a certain type of specificity as to the arena of use but, within that zone, they are noticeably broad. Stated differently, one might say that the class of medical instruments is a very broad class indeed, aptly describing any useful tool, implement,...
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