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HQ 954682




July 14, 1994

CLA-2 CO:R:C:M 954682 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.40.00

District Director of Customs
1215 Royal Lane
Post Office Box 789
Dallas/Fort Worth, TX 75261

RE: Protest 5501-93-100209; Ampoule Inspection Machine (AIM); Other Optical Measuring and Checking Instruments and Appliances; Aid or Enhance Human Vision; Functional Unit; Section XVI, Note 4; Additional U.S. Note 3 to Chapter 90; EN 9031.40

Dear District Director:

The following is our decision regarding the request for further review of Protest 5501-93-100209, which concerns the classification of the Eisai Ampoule Inspection Machine (AIM) under the Harmonized Tariff Schedule of the United States (HTSUS). The subject entry was liquidated on March 26, 1993. The protest was timely filed on June 15, 1993.

FACTS:

The subject merchandise is the Eisai Ampoule Inspection Machine (AIM) which is designed for foreign particulate detection in glass ampoules, vials and large infusion bottles. The AIM has replaced traditional inspection by the naked eye and conventional inspection by machines. The AIM operates in the following manner: containers such as ampoules, vials, etc., which are filled with liquid injectables are conveyed onto the slowly rotating inspection table. On the inspection table, the container is spun three times and inspected twice for foreign particulate matter and once for fill. Each container is spun at a high speed and braked just before entering the inspection beam. When in the beam, only the solution inside the glass vials is still rotating. Any particulate matter present in the solution blocks the light. The sensor perceives the light variation caused by the particulate matter and judges the container acceptable or faulty, in accordance with the preset sensitivity level. The containers judged acceptable are collected into a separate hopper.

The main components of the AIM are the feed belt, the infeed starwheel, two light projectors, the spinning motor, the discharge starwheel, the screw conveyer, the sorting pendulum and the collection hopper. The detection system consists of a light source, a lens, another lens, and a photodiode array. The first lens focuses the incoming light rays from the light bulb, and the second lens directs the light, after it has passed through the spinning liquid in the glass ampoule, to the photodiode array.

The merchandise was entered under subheading 9030.39.00, HTSUS, as other measuring or checking electrical quantities. The entry was liquidated under subheading 9031.40.00, HTSUS, as other optical measuring and checking instruments.

Classification of the merchandise under subheading 9027.80.40, HTSUS, as instruments and apparatus for measuring or checking quantities of light, and under subheading 9031.80.00, HTSUS, as other measuring or checking instruments, are also under consideration. In a meeting at Customs Headquarters, protestant withdrew their claim of classification under heading 9030, HTSUS.

The following subheadings are under consideration:

9027.80.40: Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus; instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters). . . : [o]ther instruments and apparatus: [e]lectrical. . . .

Goods classifiable under this provision have a general, column one rate of duty of 4.9 percent ad valorem.

9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . . :

9031.40.00 Other optical instruments and appliances. . . .

Goods classifiable under this provision have a general, column one rate of duty of 10 percent ad valorem.

9031.80.00 Other instruments, appliances and machines. . . .

Goods classifiable under this provision have a general, column one rate of duty of 4.9 percent ad valorem.

ISSUE:

Whether the AIM is classifiable as instruments and apparatus for measuring or checking quantities of light, or as other checking or measuring instruments and apparatus, or other optical checking or measuring instruments and apparatus, under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The primary issue before Customs is whether the AIM performs a "measuring" or "checking" function and under what heading this function falls within. The terms "measuring" and "checking" are not defined in the HTSUS nor in the Harmonized Commodity Description and Coding System Explanatory Notes (EN) which constitutes the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed.Reg. 35127, 35128 (August 23, 1989).

A tariff term that is not defined in the HTSUS or in the EN's is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

In United States v. Corning Glass Works, 66 CCPA 25,27, 586 F.2d 822, 825 (1978), the Court of Customs and Patent Appeals, quoting Webster's Third New International Dictionary, 381 (1971), stated:

"Check" is defined as "to inspect and ascertain the condition of especially in order to determine that the condition is satisfactory; *** investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of ***; to investigate and make sure about conditions or circumstances ***."

The term "measure" is defined as follows:

To ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount . . .; measure the dimensions of; take the measurements of . . .; to compute the size of . . . from dimensional measurements."

See Webster's Third International Dictionary, 1400 (1986); See also HQ 950196 (January 8, 1992); HQ 088025 (January 17, 1991).

The protestant states that the AIM "measures" the light received on the photodiode array after it has passed through the ampoule. While the AIM only passes on each ampoule with an accept/reject judgment, the detection system must read the amount of light received and compare it against a preset detection sensitivity level. If the amount of light is lower than the preset level (indicating a shadow), the detection system will have identified foreign particulate. The protestant argues that the AIM is "measuring" the quantity of light striking the photodiode array and is therefore classifiable under heading 9027, HTSUS.

The AIM consists of the feed belt, the infeed starwheel, the spinning motor, the discharge starwheel, the screw conveyer, the sorting pendulum, the collection hopper, and the light detection system. Note 3 to Chapter 90, HTSUS, states that: "[t]he provisions of note 4 to section XVI apply to this chapter." Note 4 to section XVI provides as follows:

Where a machine (including a combination of machines) consists of individual components . . . intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.

The AIM meets the definition of a functional unit because it consists of individual components intended to contribute together to a clearly defined function of checking ampoules for foreign particulate and for fill. We find that the AIM is not "measuring" quantities of light but checking ampoule vials and their liquid fills to determine whether or not they should be accepted or rejected. After checking the quantity of light being reflected through the ampoules, the AIM sorts the vials based upon their acceptability. Because the AIM is not "measuring" quantities of light, we find that classification under heading 9027, HTSUS, is precluded. Therefore, we find that the AIM is classifiable as other checking or measuring instruments under heading 9031, HTSUS.

Under the Tariff Schedules of the United States (TSUS), the precursor to the HTSUS, Customs classified an Eisai AIM under item 712.49, TSUS, which provided for non-optical electrical measuring, checking, analyzing or automatically-controlling instruments and apparatus. See HQ 071583, dated December 5, 1986. The basis for that decision was due to the court's decision in EAC Engineering v. United States, 623 F.Supp. 1255, 9 CIT 534 (1985), which determined that for an article to be classified as an optical instrument it must aid the human vision. Based upon HQ 071583, the protestant argues that the merchandise should be classified under subheading 9031.80.00, HTSUS, as non-optical measuring or checking instruments. The protestant argues that the AIM does not aid human vision and that is a requirement for optical equipment.

Congress has indicated that earlier rulings must not be disregarded in applying the Harmonized Code. The conference report to the Omnibus Trade Bill states that on a case by case basis prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. H.Rep No. 100-576, 100th Cong., 2D Sess. 548 (1988) at 550.

To assist in our understanding of the scope of heading 9031, HTSUS, we refer to EN 9031.40, page 1533, which states that:

[t]his subheading 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.

Since the enactment of the HTSUS, Customs has consistently held that the requirement of instruments and appliances to be classified as optical only when they aided or enhanced human vision is no longer valid based upon the advancement of technology and the language in EN 90.31 and EN 9031.40. See, HQ 953312, dated June 17, 1993; HQ 952000, dated January 28, 1993; HQ 080294, dated April 21, 1989. If the AIM meets the definition of "optical instruments" or "optical appliances" under the HTSUS, then classification under subheading 9031.80.00, HTSUS, will be precluded.

Additional U.S. Note 3 to Chapter 90, HTSUS, states that: "[f]or 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 lenses in the AIM direct light from the light source to the ampoule and then onto the photodiode array. We find that the use of the optical elements is not subsidiary. Without the optical elements, the AIM could not perform its function of detecting foreign particulate in the solution and check for fill. Therefore, we find that the AIM meets the definitions of "optical" appliances" and "optical instruments" under Additional U.S. Note 3 to Chapter 90. The AIM is an optical checking instrument and is classifiable under subheading 9031.40.00, HTSUS. Therefore, classification of the AIM as non-optical checking instruments under subheading 9031.80.00, HTSUS, is precluded.

HOLDING:

The AIM is classifiable under subheading 9031.40.00, HTSUS, as other optical checking or measuring instruments.

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 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
Commercial Rulings Division

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