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HQ 967441




May 26, 2005

CLA-2 RR:CR:GC 967441 RSD

CATEGORY: CLASSIFICATION

TARIFF NO.: 8465.93.00

Port Director
U.S. Customs and Border Protection
610 S. Canal Street
Room 306
Chicago, Illinois 60607

RE: Protest #3901-04-101452; Classification of Lens-Grinding Machines

Dear Port Director:

This is our decision on Protest 3901-04-101452 filed by counsel on behalf of AIT Industries (AIT) against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of eyeglass lens-grinding machines. The entries were liquidated on August 6, 2004, and the protest was timely filed on November 3, 2004.

FACTS:

The merchandise at issue is a lens-grinding machine known as the “Maxima Edger” (“Maxima”). The machine grinds, polishes, and grooves plastic or glass lenses for eyeglasses. It operates by holding a prescription eyeglass lens between two arms and spinning the lens at a high rate of speed. While the lens is spinning, it is lowered down onto grinding, polishing and grooving tools that are also spinning. These tools are composed of a series of wheels. Each wheel has its own abrasive character so that the lens can be ground, polished, and grooved. Once one of the machining functions is completed, the lens is raised up off the specific wheel and the wheel assembly moves horizontally, left to right. It then aligns the next function wheel under the lens. The contact between the wheels and the lens results in the production of finished eyeglass lens. The various tooling wheels are aligned in a continuous row. The tooling wheels are individually mounted and may be replaced as needed. The machine includes four grinding wheels for all materials.

When the Maxima machines were entered, your office classified them in subheading 8465.93.00, HTSUS as other grinding, sanding, or polishing machines. On August 6, 2004, the protested entry of the Maxima machines was liquidated in subheading 8465.93.00, HTSUS.

ISSUE:

Whether the Maxima lens grind machines should be classified in subheading 8465.10.00, HTSUS, as machine tools for working hard plastics which can carry out different types of machining operations without a tool change between operations or in subheading 8465.93.00, HTSUS as other grinding, sanding, or polishing machines.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The HTSUS provisions under consideration are as follows:

8465 Machine tools (including machines for nailing, stapling, glueing or otherwise assembling) for working wood, cork, bone, hard plastics or similar hard materials:

8465.10.00 Machines which can carry out different types of machining operations without tool change between such operations

Other:

8465.93.00 Grinding, sanding or polishing machines

There is no dispute that the Maxima lens-grinding machines under consideration are machine tools principally used for working hard plastics or similar hard materials and that they are classified in heading 8465, HTSUS. Consequently, the issue we must resolve is in which of the subheadings of heading 8465, HTSUS, are the Maxima machines classified. GRI 6 provides that for legal purposes, classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level. Since GRI 6 uses the phrase "for legal purposes" the preceding GRIs are to be applied at the subheading level necessary for the final legal classification of the goods for tariff purposes.

The machine tools of heading 8465, HTSUS, are essentially of two types: 1) those which carry out different types of machining operations without tool change between the different machining operations (subheading 8465.10.00), and 2) other machine tools including those of subheading 8465.93.00. See HQ 954590 dated October 5, 1993.

Protestant contends that the Maxima grinds, polishes, and grooves the applicable eyeglass lenses without a tool change between the different machining operations that it performs. Based on HQ 966621, dated February 18, 2004, Protestant feels that the Maxima does not exceed the scope of subheading 8465,10.00, HTSUS. In HQ 966621, Customs and Border Protection (CBP) ruled on the classification of a machine called a V-Pro Generator, which was a combination grinding and milling machine used primarily for machining ophthalmic lenses. CBP stated in HQ 966621 that the V-Pro Generator exceeded the scope of subheading 8465.10.00, HTSUS, because it required manual assistance to change the tools to work on different materials, and to switch from milling to grinding. In the case of the Maxima, Protestant claims that it meets the terms of subheading 8465.10.00, HTSUS, because it requires no manual assistance to change tools to work on different materials, such as hard plastic or glass, or to switch from different machining operations such as grinding, polishing, or grooving.

Subheading 8465.10.00, HTSUS, requires that different machining operations must be done without tool change between such operations. However, subheading 8465.10.00, HTSUS, does not indicate manual tool changes are the only type of tool changes that would prevent machines from being classified in the subheading. In this instance, the Maxima does change tools between the different machining operations that it performs, but the tool changes are done automatically by the machine rather than manually by an operator. In regards to HQ 966621, the V-Pro lens Generator was excluded from subheading 8465.10.00, HTSUS, because it required manual assistance to change the tools to work on different materials and to switch from milling to grinding. Yet, there is nothing in the ruling that supports the position that only machines that change tools manually between machining operations are excluded from classification in 8465.10.00, HTSUS, or that machines on which the tools are changed automatically can be classified in subheading 8465.10.00, HTSUS. In other words, for purposes of subheading 8465.10.00, HTSUS, we can see no distinction between a manual tool change and an automatic tool change. Consequently, based on the plain language of subheading 8465.10.00, we believe that machines that change tools between machining operations, regardless of whether its automatic or manual, are excluded from subheading 8465.10.00, HTSUS. Therefore, we find that because the Maxima change tools between its different machining operations, it cannot be classified in subheading 8465.10.00, HTSUS.

Turning to the next subheading level, the Maxima machine grinds, polishes, and grooves glass and hard plastics to make lenses for eyeglasses. Subheading 8465.93.00, HTSUS, provides for “grinding, sanding or polishing machines”. Protestant contends that subheading 8465.93.00, HTSUS, is inapplicable because the use of the word “or” in the subheading means that it covers only machines that perform only one of the listed machining operations. Under this view of subheading 8465.93.00, HTSUS, machines that perform more than one of the listed machining operations are excluded from being classified in subheading 8465.93.00, HTSUS. Thus, according to Protestant, because the Maxima both grinds and polishes, it should be excluded from classification in subheading 8465.93.00, HTSUS.

We disagree that the use of the word “or” in subheading 8465.93.00, HTSUS, means that that it does not cover machines that perform more than one of the listed machining operations. In the Sturm Manual on Customs law, it is pointed out that whether the conjunctive “and” may be read as the disjunctive “or” depends upon the context and congressional intent, which may be apparent from the legislative history and the language of previous tariff acts. See Ruth F. Sturm, CUSTOMS LAW AND ADMINISTRATION § 51.5. 52, (3rd ed. 1995) (cites omitted). Although in the subheading under consideration the disjunctive “or” is used rather than the conjunctive “and”, we believe that the same general principle should apply. In other words, we believe that in order to follow the Protestant’s interpretation that the use of the word “or” in subheading 8465.93.00 HTSUS, eliminates machines that perform more than one of the listed machining operations from being classified in subheading 8465.93.00, HTSUS, there should be evidence supporting Protestant’s position. Protestant has not provided any such evidence to support its interpretation. Furthermore, if Protestant’s interpretation is applied, then every multi-function machine which has a tool change between different machining operations so that it is not covered in subheading 8465.10.00, HTSUS, would have to be classified in the basket provision of subheading 8465.99, HTSUS, as other: other. There is nothing in the language of heading 8465, HTSUS, or any background materials that confirms such a reading of heading 8465, HTSUS, and its subheadings. In contrast, CBP has previously interpreted another machine tool subheading that contains the word “or” as the proper subheading for classifying a machine that performs multiple machining operations. See NY C80446,dated October 21, 1997. Therefore, in our judgment, the presence of the word “or” in subheading 8465.93.00, HTSUS, does not disqualify a machine that performs more than one of the mentioned machining operations from being classified in the subheading. Accordingly, we find that the Maxima machines that produce hard plastic or glass eyeglass lenses are classified in subheading 8465.93.00, HTSUS as other grinding, sanding or polishing machine tools for working wood, cork, bone, hard plastics or similar hard materials.

HOLDING:

By application of GRI 1, and GRI 6, the “Maxima" lens grinding machines are classified in subheading 8465.93.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as: Machine tools (including machines for nailing, stapling glue or otherwise assembling) for working wood, cork, bone, hard plastics or similar hard materials: Other: Grinding, sanding or polishing. The 2004 general, column one rate of duty for the Maxima lens-grinding machines is 3 percent ad valorem. Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

You are instructed to DENY the protest. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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