Before Lourie, Rader, and Bryson, Circuit Judges.
The opinion of the court was delivered by: Lourie, Circuit Judge
Appealed from: United States Court of International Trade. Senior Judge James L. Watson.
Carl Zeiss, Inc. appeals from the June 23, 1998 decision of the United States Court of International Trade denying its motion for summary judgment and granting the United States' cross-motion for summary judgment that the United States Customs Service correctly classified its imported ZMS 319 product under subheadings 9011.10.40 and 9011.90.00, Harmonized Tariff Schedule of the United States, 19 U.S.C. § 1202 (1994) (HTSUS). See Carl Zeiss, Inc. v. United States, 16 F. Supp. 2d 1097 (Ct. Int'l Trade 1998). Because we conclude that Customs correctly classified the merchandise, we affirm.
In 1994 and 1995, Zeiss imported a product called the ZMS 319 from Germany. The ZMS 319 is comprised of a Zeiss OPMI(TM) microscope, a stand, and accessories, including a camera-all specially tailored for neurosurgical use. The parties dispute which of the following headings and subheadings constitutes the product's proper classification:
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 9011.90.00 Parts and accessories * * * 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: Optical instruments and appliances and parts and accessories thereof: * * * 9018.90.20 Other HTSUS (1995 ed.) (emphasis added).
Customs classified the ZMS 319 as a stereoscopic compound microscope with a means for photographing the image, parts, and accessories, under subheadings 9011.10.40 and 9011.90.00, and liquidated it at the corresponding general duty rates. See Zeiss, 16 F. Supp. 2d at 1098. Zeiss timely protested Customs' classification, which protest was denied. Zeiss then challenged Customs' classification in the Court of International Trade, requesting that the court order Customs to reliquidate its ZMS 319 entries under subheading 9018.90.20, duty-free, and to refund the duty that had been assessed. The government responded that Customs had correctly classified the ZMS 319.
Zeiss and the government each cross-moved for summary judgment. The court granted the government's motion and held that Customs correctly classified the ZMS 319 under heading 9011 because that heading described the ZMS 319 more specifically than heading 9018, noting the fact that heading 9011 is an eo nomine provision and heading 9018 is a use provision. See id. at 1099-1100. The court rejected Zeiss's argument that under Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380 (CCPA 1982), all microscopes used in medicine must be classified under heading 9018. See id. at 1100. The court found that Zeiss had not proved that the term "compound optical microscope" had a commercial meaning distinct from its common meaning, see id. at 1100-01, and noted that the Explanatory Notes to the HTSUS*fn1 supported Customs' classification. See id. at 1101.
Zeiss timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994).
A. The Standard of Review
We review the Court of International Trade's grant of summary judgment in a
trade classification case for correctness as a matter of law, deciding de novo whether genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. See U.S. Ct. Int'l Trade R. 56(d); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998). Determining the meaning of a tariff term is a question of law. See Baxter Heathcare Corp. of P.R. v. United States, 182 F.3d 1333, 1337 (Fed. Cir. 1999). We give Chevron deference to Customs' interpretations of these terms in its regulations, see United States v. Haggar Apparel Co., 119 S. Ct. 1392, 1399 (1999), but not to those interpretations in Customs rulings, see Mead Corp. v. United States, 185 F.3d 1304, 1307 (Fed. Cir. 1999). Determining whether a particular imported item falls within the scope of the various classifications as properly construed is a question of fact. See Baxter, 182 F.3d at 1337. In this case, the structure and use of the ZMS 319 are not in dispute, and Customs has not promulgated any regulations interpreting these headings and ...