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HQ 954117




August 22, 1994

CLA-2 CO:R:C:M 954117 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.40.00

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Protest 1001-92-107315; Sira Image Automation laser-based inspection system; subheading 9031.80.00; HQ 080094, 080294, 084646, 952000, 953312, 953826; HSC, 7th Session (Doc. 36.457, 36.274 (HSC/6)); Timex Corp. v. U.S.; Digital Equipment Corp. v. U.S.; chapter 90, add. U.S. note 3; "optical instruments"

Dear Regional Commissioner:

The following is our decision regarding Protest 1001-92- 107315, which concerns the classification of the Sira Image Automation laser-based inspection system under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered on October 12, 1991, and the entry was liquidated on September 11, 1992. The protest was timely filed on December 8, 1992.

FACTS:

The merchandise at issue is the Sira Image Automation laser- based inspection system, which is used to identify several kinds of defects in flat homogenous products as they are being manufactured. The system's operation is initiated by transmission of laser light on the product being inspected. The system contains lenses which focus the laser beam as appropriate to the surface of the products being examined, and mirrors which control the direction of the beam. The transmitted light passes through the lenses, bounces off a mirror and onto a mirrored, rotating polygon. The polygon, which causes the beam to be swept across the product, enables the system to remain stationary while in operation.

When the product is scanned, each type of defect (e.g., holes, bumps, fissures) causes the light to behave differently. The light is changed in intensity, direction or coherence. The light is then directed back along the beam of incidence by a retro-reflector. The return beam reaches the polygon and passes through a high resolution imaging lens onto a photomultiplier tube. The photomultiplier converts the light energy to electric energy and transmits this electrical signal to the computer bank. Within the computer processor, the electrical impulses are read and the types and extent of defects are inferred and displayed on a color coded chart.

The system was entered under subheading 9031.80.00, HTSUS, which provides for other measuring and checking instruments, appliances and machines. The system was classified upon liquidation under subheading 9031.40.00 (now, 9031.40.80), HTSUS, which provides for other optical measuring and checking instruments and appliances. The protestant states that the optical components of the system make up approximately 10-12 percent of the system's total cost.

ISSUE:

Whether the Image Automation laser-based inspection system is classifiable as other optical measuring and checking instruments and appliances under subheading 9031.40.00, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ." The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The subheadings at issue are as follows:

9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
Other optical instruments and appliances:
9031.40.00 Other (10%) - 3 -

9031.80.00 Other instruments, appliances and machines (4.9%)

Additional U.S. Note 3 to chapter 90, HTSUS, states that for the purposes of this chapter, "the terms '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."

The protestant claims that the Image Automation laser-based inspection system does not aid human vision, and therefore, cannot be considered an "optical instrument." Customs has consistently rejected this restrictive interpretation of Additional U.S. Note 3 to chapter 90.

This argument was addressed soon after the implementation of the HTSUS in HQ 080294, dated April 21, 1989, wherein we considered the classification of an inspection system used to detect flaws in optical disks. The device's inspection system contained a transmission lamp, reflection lamp, reflection type CCD camera and transmission type CCD camera (image sensors). The cameras contained lenses and mirrors for picking up and detecting the flaws exposed on the disk by the light source unit. While the device did not provide a direct aid to human vision, we held that it should be classified as an optical instrument under subheading 9031.40.00, HTSUS. In that ruling we reasoned as follows:

Although there may be some indication in the case law under earlier tariff acts that an optical instrument must aid or enhance human vision directly it would seem that this is an outmoded concept. Where the information obtained by the optics is either so rapidly produced or so voluminous or so exquisitely fine that the human brain cannot possibly process it and an intermediate device is required to process the information to present it in useable form, there is, in a sense, an aid or an enhancement of human vision, albeit not that conceived of by the framers of the earlier tariff acts.

We then stated that the U.S. Court of International Trade's reasoning in Timex Corporation v. United States, 691 F.Supp. 1445, (1988), was applicable to the classification of optics under the HTSUS. In Timex Corporation, the Court, in discussing a provision of the Tariff Schedules of the United States (TSUS), commented that when that provision was enacted, "it left the wording of earlier statutes and the reasoning of earlier cases behind." Id. at 1448.

The Court remarked that the new statute was "a new less-tortured statute; it should not be burdened with outmoded technicalities which lead to absurd results . . . ." Id. at 1448-9. See also Digital Equipment Corporation v. United States, 710 F.Supp. 1381, 1382 (1988) (wherein the Court held that the case was one in which "the integrity of the Tariff Schedules will be far greater preserved if artificial classifications are not rationalized under antiquated schedules neither designed nor intended for present day application").

In HQ 084646, dated September 13, 1989, we reiterated our position "that an instrument is an optical instrument for classification purposes if the optics are required to process . . . the information in order to present it in usable form. This constitutes an aid or an enhancement of human vision." See also HQ 952000, dated January 28, 1993; HQ 953312, dated June 17, 1993; HQ 953826, December 14, 1993.

Thus, the fact that the Image Automation laser-based inspection system does not provide a direct aid or enhancement to human vision does not take it beyond the scope of subheading 9031.40.00, HTSUS. See also EN 90.31, pg. 1533, which states that subheading 9031.40, HTSUS, "covers not only instruments and appliances which provide a direct aid or enhancement to human vision, but also other instruments and apparatus which function through the use of optical elements or processes."

The protestant also contends that the optical components of the system perform only a subsidiary role in the operation of the instrument. The protestant states that the optical elements neither provide data nor perform a measurement function per se, rather they are used exclusively to direct and focus light emitted from and returning to the system. The protestant further states that the optical elements merely serve to initially focus the laser light onto the object being scanned and segregate the return beam onto the photomultiplier tubes, which convert the light energy to electrical energy, and trigger the computerized process of defect detection.

Finally, the protestant states that the system could be reconfigured to operate without the series of lenses and mirrors which it currently employs (i.e., positioning the laser gun in the scanner box so as to directly strike the rotating polygon; placing the scanner box on a sliding track that would permit the appropriate convergence of the laser beam via distance from the target object, or utilize a series of interchangeable lasers to achieve the same purpose; etc.). However, the system clearly could not perform its primary function without the laser, an optical instrument. See HQ 080094, dated September 3, 1987; Harmonized System Committee, 7th Session (Doc. 36.457, 36.274 (HSC/6)).

It is our opinion that, as presently configured, the optical components of the system, which make up only a small portion of the total value of the system, are integral to the basic function of the apparatus, which is to the inspection of flat products. See HQ 952000. Accordingly, the system is an "optical instrument" for tariff purposes, and is classifiable under subheading 9031.40.00, HTSUS.

HOLDING:

The Sira Image Automation laser-based inspection system is classifiable under subheading 9031.40.00, HTSUS.

The protest should be DENIED. 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 the 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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