HQ 959711 - Protest 3501-95-100211; Promex-O Measuring System; Optical Measuring or Checking Instruments and Appliances; Optical Appliance; Optical Instrument; Functional Unit; Legal Note 3 to Chapter 90; Legal Note 4 to Section XVI; Additional U.S. Note 3 to Chapter 90; Headings 9026 and 9031; HQs 955230, 954117, 954682, 952298, 952297, 950196, 088941, 088025 - United States International Trade Commision Rulings

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HQ 959711

January 6, 1997

CLA-2 RR:TC:MM 959711 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.40.80

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

RE: Protest 3501-95-100211; Promex-O Measuring System; Optical Measuring or Checking Instruments and Appliances; Optical Appliance; Optical Instrument; Functional Unit; Legal Note 3 to Chapter 90; Legal Note 4 to Section XVI; Additional U.S. Note 3 to Chapter 90; Headings 9026 and 9031; HQs 955230, 954117, 954682, 952298, 952297, 950196, 088941, 088025

Dear Port Director:

The following is our decision regarding Protest 3501-95-100211, which concerns the classification of Promex-O Measuring System under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is the Promex-O Measuring System ["Promex-O"] which measures profile shapes or stampings (i.e., pipes, extrusion moulding plants, gearwheels, moulded parts, etc.) to determine if the shapes meet their required specifications. The Promex-O consists of the following components: an IBM-compatible personal computer; Promex-O Model (200 x 290 mm scanning area); a 16-inch color monitor; CCD (charged coupled device) High Resolution Scanning System (a flat bed scanner); Working Table; and a Modem. According to the sales literature, the Promex concept comprises of the optical recording unit and the evaluation unit. The Promex-O CCD scanning system contains a light source that shines on the profile. Light is reflected back which allows the scanner to convert the image of the profile shape into a gray scale. The digitized information is then transferred to the computer via a SCSI (small computer system interface). The computer then calculates the dimensions based upon the information received.

The merchandise was entered in 1994 under subheading 9026.90.60, HTSUS, as parts and accessories of instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases. The entry was liquidated on March 24, 1995, under subheading 9031.40.80, HTSUS, as other optical measuring or checking instruments and appliances. The protest was timely filed on May 26, 1995. Classification of the subject merchandise under subheading 9031.80.00, HTSUS, as other measuring or checking instruments and appliances is also under consideration.

The 1994 subheadings and their corresponding duty rates under consideration are as follows:

9026.90.60: Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof: [p]arts and accessories: [o]ther: [o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 4.7 percent ad valorem.

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

9031.40.80: Other optical instruments and appliances: [o]ther. . . .

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 Promex-O Measuring System is classifiable as parts and accessories of instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases, or as other checking or measuring instruments and apparatus, or as 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 Promex-O consists of an IBM-compatible personal computer, Promex-O Model (200 x 290 mm scanning area), a 16-inch color monitor, CCD High Resolution Scanning System, Working Table, and a modem. Legal Note 3 to Chapter 90, HTSUS, states that: "[t]he provisions of note 4 to section XVI apply to this chapter." Legal Note 4 to section XVI provides as follows: "[w]here 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 Promex-O meets the definition of a functional unit because it consists of various components intended to contribute together to a clearly defined function of measuring profile shapes to determine if the shapes meet their required specification.

The protestant believes that the subject merchandise is classifiable under heading 9026, HTSUS, as parts and accessories of instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases. However, the article in its imported condition is designed to measure profile shapes to determine if the shapes meet their required specification, not variables of liquids or gases. Therefore, we find that the Promex-O does not meet the terms of heading 9026 and cannot be classified under the provision claimed by protestant.

Heading 9031, HTSUS, provides for measuring or checking instruments, appliances and machines, not specified elsewhere in this chapter. The first issue before Customs is whether the Promex-O performs a "measuring" or "checking" function and under what subheading 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 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 F.R. 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 954682 (July 14, 1994); HQ 950196 (January 8, 1992); HQ 088025 (January 17, 1991). Based upon the above definitions, we find that the Promex-O which measures or checks profiles meets the terms of heading 9031, HTSUS. The only remaining issue is whether the Promex-O contains optical elements and whether or not those optics are subsidiary to its function.

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 claims that the Promex-O does not use light filters and does not employ any device which filters light through a CCD. This claim is not supported by any documentation. Our research into CCD scanners indicate that some type of light must be reflected off the image to enable the light sensitive cells called CCDs to digitize the image. See PC/Computing Magazine, April 1994, pages 136-137. Therefore, we conclude that the Promex-O contains optical elements such as a light source, a filter, and a beam splitter to enable the CCD to digitize the profile.

The issue to be determined is whether the optical elements in the Promex-O are subsidiary to the actual function of measuring or checking being performed by the merchandise. Citing Webster's II New Riverside University Dictionary (1984),p. 1155, Customs, 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 HQ 088941 (January 16, 1992); see also HQ 955230 (July 12, 1994).

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 9031.40.00, 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 952297 and HQ 952298, both dated July 30, 1993, Customs determined that the Ledascan System, a high speed number verification system, incorporating a dedicated processor, CCD cameras and high intensity lighting, we re classifiable under subheading 9031.40.00, HTSUS, as other optical checking instruments. The CCD cameras converted number-shapes into digital images and passed along the information to the dedicated processor which checked and verified the numbers.

Based upon HQs 954117, 952297 and 952298, we find that the optical elements in the Promex-O scanning system are not subsidiary. Because the optics must be employed for the Promex-O to digitize the profile to determine if the shape meets the required specification, we conclude that the subject merchandise is classifiable under subheading 9031.40.80, HTSUS, as other optical measuring or checking instruments, appliances, and machines.

HOLDING:

The Promex-O Measuring System is classifiable under subheading 9031.40.80, HTSUS, as other optical measuring or checking instruments, appliances and machines.

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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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