HQ 0954929 - Protest No. 1101-93-100379; Ampoule Inspection Machine; Chapter 90, Additional U.S. Note 3; HQ's 084646 and 080294; NY's 885569, 880800, and 875225; GRI 2(a); Section XVI, Note 1(m); 8479.89.90 - United States International Trade Commision Rulings

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HQ 954929
December 21, 1993

CLA-2 CO:R:C:M 954929 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.40.00

District Director
U.S. Customs Service
2nd and Chestnut Streets, Room 102
Philadelphia, PA 19106-2999

RE: Protest No. 1101-93-100379; Ampoule Inspection Machine; Chapter 90, Additional U.S. Note 3; HQ's 084646 and 080294; NY's 885569, 880800, and 875225; GRI 2(a); Section XVI, Note 1(m); 8479.89.90

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 1101-93-100379 concerning your action in classifying and assessing duty on an ampoule inspection machine under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of an ampoule inspection machine (model no. V09-AVSB/60), manufactured in Germany. The descriptive literature, provided by the protestant, describes the machine as an inspection machine for the visual inspection of particulate matter in ampoules, vials, infusion bottles, and similar items. The machine rotates the ampoules, etc., which causes the particulate matter to whirl. A halogen light, powered through a fiber optic system, provides a concentrated beam. Light refracts off of the particulate matter, causing it to glow. The inspection machine can be used to detect glassware defects and microfissures, as well as the presence of particulate matter. There are different light systems, magnifying lenses, and colored light filters to aid in the detection of the various defects. In its condition as imported, the inspection machine is without its optical elements. However, the user can purchase these elements to assist the operator during the inspection process.

The merchandise was entered under subheading 8479.89.90, HTSUS, as an other machine having individual functions, not specified or included elsewhere in chapter 84, HTSUS. The entry was liquidated on March 17, 1993, under subheading 9031.40.00, HTSUS, as an other optical instrument. It is our understanding that a facsimile of the Customs Form 19 was transmitted by counsel of the protestant and received by Customs on June 15, 1993. The original of the Customs Form 19 was received by Customs on July 20, 1993. Therefore, the protest was timely filed.

The subheadings under consideration are as follows:

8479.89.90: [m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter . . . : [o]ther machines and mechanical appliances: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 3.7 percent ad valorem.

9031.40.00: [m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . . : [o]ther optical instruments and appliances.

The general, column one rate of duty for goods classifiable under this provision is 10 percent ad valorem.

ISSUE:

Whether the ampoule inspection machine constitutes an unfinished visual inspection machine.

Whether the ampoule inspection machine is classifiable under subheading 8479.89.90, HTSUS, as an other machine having individual functions, not specified or included elsewhere in chapter 84, HTSUS, or under subheading 9031.40.00, HTSUS, as an other optical instrument.

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.

Chapter 90, additional U.S. note 3, HTSUS, states that:

[f]or the purposes of this chapter, the term "optical appliances" and "optical instruments" refer only to those appliances and instruments which incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose.

In HQ 084646, dated September 13, 1989, which held that a laser inspection device was classifiable under subheading 9031.40.00, HTSUS, we stated that:

[t]he optical elements incorporated into the system in issue are essential to its operation. Furthermore, laser rays are routed through the optical elements. The relationship of these optical elements to the instrument are not subsidiary to the function of the instrument. Additional U.S. note 3, chapter 90, is noted and we determine that it does not preclude classification of the instrument as an optical instrument.

Therefore, it is our position that a complete visual inspection machine, with optical elements, meets the definition of chapter 90, additional U.S. note 3, HTSUS, and is classifiable under subheading 9031.40.00, HTSUS. See also HQ 080294, dated April 21, 1989, NY 885569, dated May 24, 1993, NY 880800, dated December 21, 1992, NY 875225, dated July 1, 1992, in which various inspection machines were held to be classifiable under subheading 9031.40.00, HTSUS.

It is claimed that the optical elements are not essential to the operation of the subject inspection machine. We disagree. In the submitted descriptive literature, in discussing the use of the machine, the role of halogen light, for example, powered through a fiber optic system, appears to be an important part of the inspection process. The literature provides that there are several optional lighting systems. However, we interpret that to mean that in using the machine, an operator can use one of several lighting systems available, not that an operator has the option of whether or not to use a lighting system.

We must now determine whether the subject inspection machine, imported without optical elements, constitutes an unfinished visual inspection machine as defined by GRI 2(a). It states that:

[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

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). Explanatory Note 3(b)(VIII) (p. 4) states that:

[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

It is our position that the subject inspection machine, imported without the optical elements but with all of the other parts, imparts the essential character of a complete visual inspection machine. The fact that different optical systems are interchangeable with the machine supports this finding.

Therefore, the inspection machine is classifiable under subheading 9031.40.00, HTSUS.

Section XVI, note 1(m), HTSUS, states that:

[t]his section does not cover:

(m) Articles of chapter 90.

Consequently, because the inspection machine is classifiable in chapter 90, HTSUS, it is precluded from classification in chapter 84, HTSUS.

HOLDING:

The ampoule inspection machine is classifiable under subheading 9031.40.00, HTSUS, as an other optical instrument.

The protest should be denied in full. 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 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, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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