CLA-2 RR:TC:MM 958808 LTO
Port Director
U.S. Customs Service
10 Causeway Street
Room 603
Boston, Massachusetts 02222-1059
RE: Protest 0401-95-100749; Scanning Laser Vibrometers; HQs 950675, 954117, 955617, 956962, 957813; NY 871914 affirmed; section XVI, note 4 ("functional unit"); chapter 85, note 6;
chapter 90, note 3; chapter 90, additional U.S. note 3 ("optical"); subheading 9031.80.00; laser
Dear Port Director:
The following is our decision regarding Protest 0401-95-100749, which concerns the classification of Polytec PI's
Scanning Laser Vibrometers under the Harmonized Tariff Schedule
of the United States (HTSUS). The subject merchandise was
entered on November 29, 1994, and the entry was liquidated on
July 14, 1995. The protest was timely filed on October 12, 1995.
FACTS:
The PSV-100-US Scanning Laser Vibrometers are used for
monitoring and measuring vibrations in a variety of articles,
including but not limited to, machinery, automobiles, aerospace
components and domestic appliances. The vibrometers measure the
velocity and absolute displacement of a point on a vibrating
structure in an entirely, non-contact manner.
The vibrometers consist of a data management subsystem,
which consists of a high performance personal computer (PC)
with high resolution color monitor, the OFV-302-R laser-based
sensor head and a vibrometer controller, which also provides - 2 -
instrument control and data analysis capabilities. The PC is
pre-loaded with proprietary software.
The laser in the sensor head is a low power, visible laser.
It contains a remote focus lens, which is controlled from the
computer keyboard or with a handset that plugs into the
controller. The laser sensor head is installed inside the OFV-050 scanning unit. The scanning unit contains the drive
electronics, a video camera, a pair of laser scan mirrors and
motor. The scanning unit gathers and collects raw data which is
then interpreted by the computer software.
The Scanning Laser Vibrometers were entered under subheading
9031.80.00, HTSUS, which provides for other measuring or checking
instruments. They were classified upon liquidation under
subheading 9031.40.80 (now 9031.49.80), HTSUS, which provides for
other optical measuring or checking instruments.
ISSUE:
Whether the Scanning Laser Vibrometers are classifiable as
optical measuring or checking instruments under subheading
9031.40.80, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding, and therefore
not dispositive, the ENs provide a commentary on the scope of
each heading of the Harmonized System, and are generally
indicative of the proper interpretation of these headings. See
T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Note 3 to chapter 90, HTSUS, states that the provisions of
note 4 to section XVI, HTSUS, also apply to chapter 90. Note 4
to section XVI, HTSUS, provides as follows:
Where a machine (including a combination of machines)
consists of individual components (whether separate or
interconnected by piping, by transmission devices, by
electric cables or by other devices) intended to - 3 -
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 components of the Scanning Laser Vibrometers contribute
together to perform a function clearly defined by heading 9031,
HTSUS, namely, measuring (and monitoring) the velocity and
absolute displacement of a point on a vibrating structure.
Accordingly, the vibrometers are "functional units," and are
classifiable under heading 9031, HTSUS, although the issue of
whether they are considered "optical" remains.
Additional U.S. Note 3 to chapter 90, HTSUS, provides that
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 vibrometers incorporate a laser and remote focus
lens in their sensor heads, and video cameras and lens scan
mirrors in their scanning units.
Customs has previously considered the classification of
other laser-based inspection systems. In HQ 954117, dated August
22, 1994, we 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 heading 9031, 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.
In HQ 955617, dated March 29, 1995, we considered the
classification of the Geotronics Industrial Measuring System. We
determined that the Geotronics system, which was designed to
measure the thickness of the refractory brick lining of steel
vessels, was classifiable as an optical measuring/checking
instrument under heading 9031, HTSUS. The system incorporated a
laser, transmitting and receiving optics and angle sensing discs,
which consisted of a glass disc and two prisms.
In HQ 957813, dated June 30, 1995, we considered the
classification of the LR 2000 Laser Profiler Refractory Measuring
System. We determined that the LR 2000, which was designed to
measure and analyze the wear on refractory linings, was - 4 -
classifiable as an optical measuring/checking instrument under
heading 9031, HTSUS, as an optical measuring or checking
instrument. The system incorporated a laser, optical sight and
other measurement optics.
In HQ 954117, HQ 955617 and HQ 957813, the systems' lasers,
in combination with the optics located outside of each laser--the
lenses, mirrors and mirrored polygon in the Sira system; the
transmitting optics, receiving optics and angle sensing discs in
the Geotronics system; and the optical sight and measurement
optics in the LR 2000--led to the determination that the systems
were "optical" ones. We found that the optical components of
each system--critical components in the performance of each
system's measuring function--were not for some subsidiary
purpose, such as, "viewing a scale."
Similarly, the Scanning Laser Vibrometer's laser, in
combination with the video camera, lens scan mirrors and remote
focus lens, lead us to the determination that the system is an
"optical" one. The protestant argues that the system's scanning
unit simply gathers and collects raw data which is then
interpreted by the computer software, which performs the
measuring function. However, without the raw data collected by
the optical devices, there would be no data to interpret. Thus,
the vibrometers are classifiable, according to note 3 to chapter
90, as optical measuring or checking instruments, under
subheading 9031.40.80, HTSUS. NY 871914, dated March 25, 1995,
which held that similar scanning vibrometers were classifiable as
optical measuring or checking instruments under heading 9031,
HTSUS, is affirmed.
Note 6 to chapter 85, HTSUS, provides that "[r]ecords, tapes
and other media of heading 8523 or 8524 remain classified in
those headings, whether or not they are entered with the
apparatus for which they are intended." The Scanning Laser
Vibrometers include a PC that is pre-loaded with proprietary
software. We have previously held that recorded software,
whether imported in floppy disk form or downloaded onto a PC's
hard disk drive, must be classified under subheading 8524.90.40,
HTSUS. See HQ 950675, dated January 7, 1992; HQ 956962, dated
September 13, 1994. Thus, the vibrometer's software must be
classified separately under this subheading.
HOLDING:
The PSV-100-US Scanning Laser Vibrometers are classifiable
under subheading 9031.40.80, HTSUS. The vibrometers' software is
classifiable under subheading 8524.90.40, HTSUS. - 5 -
The protest should be GRANTED to the extent reclassification
of the software as indicated above results in a net duty
reduction or partial allowance. 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 the 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 Division