CLA-2 RR:TC:MM 959711 RFA
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
Appeals Division