CLA-2 CO:R:C:M 953312 MMC

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; Additional U.S. Note 3 to Chapter 90, EN 90.31

Dear Mr. Sebastian:

This is in response to your letter of 1/22/93 requesting classification of a VA series Coordinate Measuring Machine (CMM) under the Harmonized Tariff Schedule of the United States (HTSUS). A brochure which depicts the article and contains a description, written in Japanese, of the machine's function was submitted. An additional brochure was submitted which provides an English explanation of the PA series CMM, which, according to your letter, functions similarly to the VA series. We were telephonically advised that the computer, disc drives, printers, and CRT's will not be imported with the CMM.


A 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. These 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.


Is the VA series CMM an optical measuring or checking instrument?


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

Heading 9031 of Chapter 90, HTSUS, provides for measuring or checking instruments. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 90.31, p. 1530, states in pertinent part:


These include:

...(15) Multidimensional measuring equipment, including Co- ordinate Measuring Machines (CMMs) used to perform dimensional checks, either manually or mechanically, on various components or parts of machines.

EN 90.31 clearly states that the article under consideration is classifiable in heading 9031, HTSUS. However, whether the CMM is an optical instrument must be determined.

Additional U.S. Note 3 to Chapter 90, HTSUS, defines optical instruments as follows:

For 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 CMM incorporates optical diffraction gratings which are optical elements. The optical diffraction grating is not used simply to view a scale or some other subsidiary purpose, but rather actually aids in measuring. Therefore, the CMM is considered an optical instrument for Chapter 90 purposes.

Subheading 9031.40.00, HTSUS, provides for [m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: [o]ther optical instruments and appliances. EN 90.31, p. 1533, states:

[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.

Because the CMM utilizes optical diffraction grating to measure, it is classifiable in subheading 9031.40.00, HTSUS.

We note that several rulings issued under the Tariff Schedule of the United States (TSUS), held that CMMs were classifiable as non-optical measuring instruments under item 710.80,TSUS, the precursor to subheading 9031.80.00, HTSUS. However, the conference report to the Omnibus Trade Bill of 1988 states in pertinent part:

[i]n light of the significant number and nature of changes in nomenclature from the TSUS to the HTSUS, decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. H. Rep. No. 100-576, 100th Cong., 2D Sess. 548 (1988) at 559.

Under the TSUS instruments and appliances were considered optical only when they aided or enhanced human vision. However, EN 90.31 clearly states that this is not the case under the HTSUS.


The CMM is classifiable in subheading 9031.40.00, HTSUS, with dutiable at 10% ad valorem.


John Durant, Director