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Question: Zeiss imported ZMS 319 microscopes, stands, and


Zeiss imported ZMS 319 microscopes, stands, and accessories, including a camera—all specially tailored for neurosurgical use. Customs classified the ZMS 319 under Heading 9011 for “stereoscopic compound microscope with a means for photographing the image.” Zeiss disagreed, arguing that the article should be classified under Heading 9018 for “Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments.” Zeiss filed a protest and then brought this action in the Court of International Trade. The court held for the government, and Zeiss appealed.

LOURIE, CIRCUIT JUDGE
Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings, which are presumed to be the same. A court may rely upon its own understanding of the terms used and may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources. One who argues that a tariff term should not be given its common or dictionary meaning must prove that it has a different commercial meaning that is definite, uniform, and general throughout the trade.
We agree with the government that the merchandise is prima facie classifiable under the 9011 Heading “compound optical microscopes.” Webster’s International Dictionary defines an “optical microscope” as “a microscope in which light rays are seen directly by the observer as distinguishable from one ([such] as an electron microscope) in which some transformation or system of indirect viewing is used.” Webster’s Third International Dictionary 1584 (1976). It further defines a “compound microscope” as “a microscope consisting of an objective and an eyepiece mounted in a drawtube and focused by means of screw arrangements.” Id. at 467. See also, The Random House Unabridged Dictionary 420 (2d ed. 1987) … . There is no dispute that the ZMS 319 OPMI® microscope conforms to these definitions. Furthermore, Heading 9011 is an eo nomine classification provision, not a use provision, as it describes the merchandise by name, not by use. It would be improper to narrow this provision to include those microscopes used in industry and research, but to exclude those microscopes used in medicine and surgery; a use limitation should not be read into an eo nomine provision unless the name itself inherently suggests a type of use. “[A]n eo nomine designation, with no terms of limitation, will ordinarily include all forms of the named article.” Hayes–Sammons Chemical Co. v. United States, 55 C.C.P.A. 69, 75, (1968). Therefore, the fact that the ZMS 319’s exclusive use is surgical is irrelevant to the question whether it falls under the eo nomine provision “compound optical microscope.”
Lastly, the [lower] court found that Zeiss had not proved that the term “compound optical microscope” has a well-known signification in trade and commerce that is different from its common meaning. On appeal, Zeiss only argues that its own product has a separate “commercial identity.” However, the fact that the ZMS 319 is designed, marketed, and used as a surgical instrument does not establish a separate commercial meaning for the HTSUS…………………

Required:
1. What sources does the court rely on to determine common and commercial meaning?
2. Why is “compound microscope” an eo nomineterm, and what does the court mean when it says, “that includes all forms of the named article?”
3. Which of the two headings is more specific,


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2.99

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