HQ 958886 - Coordinate Measuring Machine (CMM); Optical Appliances and Optical Instruments; Measuring or Checking Instruments; Subsidiary; Additional U.S. Note 3 to Chapter 90; HQs 088941, 950947, 952000, 954117, 954682, 955230; HQ 953312, revoked - United States International Trade Commision Rulings

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HQ 958886

April 5, 1996

CLA-2 RR:TC:MM 958886 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.80.00

Mr. Greg Sebastian, Manager
Finance and Administration
Tokyo Seimitsu America, Inc.
39205 Country Club Drive, Suite C-22
Farmington Hills, MI 48331

RE: Coordinate Measuring Machine (CMM); Optical Appliances and Optical Instruments; Measuring or Checking Instruments; Subsidiary; Additional U.S. Note 3 to Chapter 90; HQs 088941, 950947, 952000, 954117, 954682, 955230; HQ 953312, revoked

Dear Mr. Sebastian:

This is in reference to HQ 953312, issued to you on June 17, 1993, in which Customs classified the VA series Coordinate Measuring Machine (CMM) under the Harmonized Tariff Schedule of the United States (HTSUS). In the course of ruling on similar merchandise, we have determined that HQ 953312 is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057)(1993), notice of the proposed revocation of HQ 953312 was published on February 9, 1996, in the Customs Bulletin, Volume 30, Number 9. No comments were received in response to the notice.

FACTS:

The VA series Coordinate Measuring Machine (CMM) determines if a particular article's dimensions are the same as the article's original design. It does this by calculating an article's coordinates on a given surface area of the machine. When measuring a particular article, the CMM in question uses moire fringe scales and an electrical mechanical probe head with a stylus. The stylus is typically a ceramic or metal shaft surmounted with a round ball which travels along the part to be measured while it is mounted on a granite table. The actual measurement occurs when the probe is triggered by touching the part being measured, which interrupts an electrical current. The probe is called an electrical-mechanical probe. The moire glass scales are interfaced with computers and are used to determine a particular article's contact point with the CMM. The contact point is read digitally as coordinates in space through moire fringe scales.

Moire fringe scales are reflective. They contain two sections of optical diffraction grating which have a precisely known number of lines per inch. They are made of either glass or polished stainless steel. When two sections of optical diffraction grating are superimposed with the gratings at a slight angle to each other, a moire fringe pattern is created. When a beam of light is projected through or reflected from this field, the relative movement of one line between the two index gratings will cause the field to go through a complete cycle of light intensity. A photoelectric cell measures the light across this field and converts the changes in light intensity into fluctuations in voltage.

Because the moire fringe scales aided in measuring, Customs determined that the VA series CMM was classifiable under subheading 9031.40.00 (now subheading 9031.49.40), HTSUS, as optical measuring or checking instruments, in HQ 953312, issued on June 17, 1993.

ISSUE:

Is the VA series CMM an optical measuring or checking instrument 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 following subheadings are under consideration:

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

9031.49: Other optical instruments and appliances: [o]ther:

9031.49.40: Coordinate-measuring machines. . . .

Goods classifiable under this provision have a column one, general rate of duty of 7.4 percent ad valorem.

9031.49.80: Other. . . . .

Goods classifiable under this provision have a column one, general rate of duty of 7.4 percent ad valorem.

9031.80.00: Other instruments, appliances and machines. . . .

Goods classifiable under this provision have a column one, general rate of duty of 3.6 percent ad valorem.

To classify merchandise as an "optical appliance" or an "optical instrument", it must meet the requirements of Additional U.S. Note 3 to Chapter 90, HTSUS, which 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 subject CMM is provided for under heading 9031, HTSUS, as a measuring or checking instruments, appliances and machines. However, it is claimed that any optics which are contained within the system are subsidiary and that the merchandise is classifiable under subheading 9031.80.00, HTSUS, as other measuring and checking instruments.

A tariff term that is not defined in the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes (ENs), which constitute the official interpretation of the HTSUS, 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 HQ 088941, dated January 16, 1992, Customs, citing Webster's II New Riverside University Dictionary (1984),p. 1155, defined "subsidiary" as "[s]erving to supplement or assist . . . [s]econdary in importance: subordinate." Customs further stated that the "[t]he meaning of 'subsidiary' has nothing to do with the amount of time optics are used in the overall use of a device, but it relates more to the type of task which the optics perform when being used in the operation of the device." See also HQ 955230, dated July 12, 1994.

The issue to be determined is whether the optical element (i.e., the glass moire scales) in the subject CMM are subsidiary to the actual function of measuring or checking being performed by the merchandise. In HQ 952000, dated January 28, 1993, Customs determined that the optics (i.e., a white light interferometer) contained within an automated system that performs user-defined metrology measurements on multilayer integrated product wafers, were integral to the basic function of the apparatus. Because the optics must be employed for this function, Customs concluded that the merchandise was classifiable under subheading 9031.40.90 (then 9031.40.00), HTSUS.

In HQ 954117, dated August 22, 1994, Customs determined that the Sira Image Automation laser-based inspection system, which was designed to identify defects in flat homogenous products, was classifiable as an optical checking instrument under subheading 9031.40.90 (then 9031.40.00), HTSUS. The system incorporated lenses which focused its laser beam onto the surface of the products being examined, mirrors which controlled the direction of the beam and a mirrored, rotating polygon, which caused the beam to be swept across the product. The lenses, mirrors and mirrored polygon were necessary to bend, refract, etc., the laser beam in order to focus or amplify the light onto the product. The optical components of the system were not, therefore, for some subsidiary purpose, such as, viewing a scale.

In HQ 954682, dated July 14, 1994, Customs determined that an Ampoule Inspection Machine (AIM) which was designed for foreign particulate detection in glass ampoules, was also classifiable under subheading 9031.40.90 (then 9031.40.00), HTSUS. The AIM's detection system consisted of lenses and a light source reflecting through the ampoules and onto a photodiode array to detect foreign particulate. The use of the optical elements were found not to be subsidiary because without them, the AIM could not perform its function of checking.

However, in HQ 950947, dated February 25, 1992, Customs determined that a Gear Measuring Center (GMC), which was designed to measure large and heavy workpieces, was classifiable under subheading 9031.80.00, HTSUS, as it was not an optical measuring or checking instrument. We held that the GMC's optical elements, which did not perform any measuring themselves but were used to set the location of the device's measuring slide, were for a subsidiary purpose.

The subject CMMs use a tactile probe that performs the measurement of an article. Like the optical elements in HQ 950947, the glass moire fringe scales do not perform any measuring themselves, but are used to set the location of the tactile probe. Based upon this information, we find that the optical elements are subsidiary to the function of the subject CMMs. Therefore, the subject CMMs are not optical measuring or checking instruments and should be classifiable under subheading 9031.80.00, HTSUS.

We note that this proposed revocation would cover only those CMMs that use a tactile probe and which contain optics that are not used in performing the measurement. This ruling does not apply to all CMMs. In determining the classification of CMMs, Customs will continue to look at the optical elements and their relation to the function that the machine or instrument is performing in determining whether the optical elements are subsidiary. See HQs 952000, 954682, 954117, 950947.

HOLDING:

The VA series CMMs are classifiable under subheading 9031.80.00, HTSUS, which provides for: "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . . : [o]ther instruments, appliances and machines. . . ." The column one, general rate of duty is 3.6 percent ad valorem.

EFFECT ON OTHER RULINGS:

HQ 953312, dated June 17, 1993, is hereby revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Tariff Classification Appeals

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