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HQ 956749




April 8, 1996

CLA-2 RR:TC:MM 956749 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.80.00

Port Director of Customs
110 S. 4th Street
Minneapolis, MN 55401

RE: Protest 3501-93-100582; Coordinate Measuring Machines (CMMs); Measuring or Checking Instruments, Appliances and Machines; Optical Appliances and Optical Instruments; Subsidiary; Additional U.S. Note 3 to Chapter 90; HQs 088941, 955230, 958886

Dear Port Director:

The following is our decision regarding Protest 3501-93-100582, which concerns the classification of coordinate measuring machines (CMMs) under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise consists of parts of a coordinate measuring machine (CMMs), labeled as "PRISMO". The CMM is used to measure parts in relation to pre-set tolerances. The measurements are taken by use of 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 diffraction grating is the glass scale on the guideway. There are three diffraction gratings (glass scales) on the three axes, X, Y, and Z. The glass scale has a grading deposited onto the glass, read by a photosin readerhead or by a readerhead consisting of four light emitting diodes (LEDs) with four corresponding receiving diodes which emit light through the grading of the scale.

The merchandise was entered in 1993, under subheading 9031.90.60, HTSUS, as parts and accessories of non-optical measuring and checking instruments and apparatus. The entry was liquidated on September 17, 1993, under subheading 9031.90.40, HTSUS, as parts and accessories of optical measuring and checking instruments and apparatus. The protest was timely filed on December 16, 1993.

The following subheadings from the 1993 HTSUS are under consideration:

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 duty rate of 10 percent ad valorem.

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

Goods classifiable under this provision have a duty rate of 4.9 percent ad valorem.

9031.90: Parts and accessories:

9031.90.40 Of other optical instruments and appliances, other than test benches. . .
.

Goods classifiable under this provision have a duty rate of 10 percent ad valorem.

9031.90.60: Other . . . .

Goods classifiable under this provision have a duty rate of 4.9 percent ad valorem.

ISSUE:

Whether the Prismo CMM is classifiable as an optical measuring and checking instrument, or whether the optics are for a subsidiary purpose, 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.

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 protestant agrees that the Prismo CMM is provided for under heading 9031, HTSUS, as a measuring or checking instruments, appliances and machines. However, the protestant claims 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. Customs recently addressed the issue of a CMM using a tactile probe to perform the measurement of an article and containing glass moire fringe scales to set the location of the tactile probe in HQ 958886, dated April 5, 1996. Because the optical elements in that CMM were used to merely set the location of the tactile probe and were not performing any measuring themselves, Customs determined that the optical elements were subsidiary to the function of the subject CMMs. (See attached copy of HQ 958886 for a full analysis of the issue of subsidiary.)

Like the CMMs in HQ 958886, the Prismo uses the optical glass scales to position the touch probe. Therefore, we find that the optics in the Prismo CMM are used for a subsidiary purpose. Because the optics are subsidiary to the function of the Prismo CMM, it would be classifiable under subheading 9031.80.00, HTSUS. Therefore, the parts of the Prismo CMM are classifiable under subheading 9031.90.60, HTSUS.

HOLDING:

The CMM Prismo parts are classifiable under subheading 9031.90.60, HTSUS, which provides for: "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter. . . :[p]arts and accessories: [o]ther . . . . " Goods classifiable under this provision have a duty rate of 4.9 percent ad valorem.

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

Sincerely,

John Durant, Director
Tariff Classification Appeals

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