CLA-2 RR:TC:MM 958427 RFA
Port Director of Customs
JFK Airport
Bldg. # 77
Jamaica, NY 11430
RE: Protest 1001-95-105117; Coordinate Measuring Machines
(CMMs); Measuring or Checking Instruments, Appliances and
Machines; Optical Appliances and Optical Instruments;
Subsidiary; Additional U.S. Note 3 to Chapter 90; HQs
088941, 955230, 958886
Dear Port Director:
The following is our decision regarding Protest 1001-95-105117, which concerns the classification of coordinate measuring
machines (CMMs) under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The subject merchandise consists of a coordinate measuring
machine (CMM), labeled as the Bravo 4308/2 CNC Dual Arm High
Speed Measuring Robot. The Bravo uses a modular horizonal arm.
The X-axis arm is composed of a rectangular section guide and the
Y-axis and Z-axis arms are formed by a structure of tubular
elements. Movement is generated by continuous-current servo
motors and the positioning is controlled by linear optical
transducers (optical gradient scales). Three types of probe
heads can be installed on the Bravo: a five way head that handles
up to four electronic touch probes, a two axes rotating wrist for
the automatic orientation of a touch finger, or an indexable
head.
The merchandise was entered in 1993, under subheading
9031.80.00, HTSUS, as non-optical measuring and checking
instruments and apparatus. The entry was liquidated under
subheading 9031.40.00, HTSUS, as optical measuring and checking
instruments and apparatus. The protest was timely filed.
The following subheadings from the 1993 HTSUS are under
consideration:
9031: Measuring or checking instruments, appliances and
machines, not specified or included elsewhere in
this chapter. . . :
9031.40.00: Other optical instruments and appliances. . .
.
Goods classifiable under this provision have a duty
rate of 10 percent ad valorem.
9031.80.00: Other instruments, appliances and machines.
. . .
Goods classifiable under this provision have a duty
rate of 4.9 percent ad valorem.
ISSUE:
Whether the Bravo CMM is classifiable as an optical
measuring and checking instrument, or whether the optics are for
a subsidiary purpose, 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.
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 subject CMM is provided for under heading 9031, HTSUS,
as a measuring or checking instruments, appliances and machines.
However, it is claimed that any optics which are contained within
the system are subsidiary and that the merchandise is
classifiable under subheading 9031.80.00, HTSUS, as other
measuring and checking instruments.
A tariff term that is not defined in the HTSUS or in the
Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), which constitute the official interpretation of the
HTSUS, 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 HQ 088941, dated January 16, 1992, Customs, citing
Webster's II New Riverside University Dictionary (1984),p. 1155,
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 also
HQ 955230, dated July 12, 1994.
The issue to be determined is whether the optical element
(i.e., the optical gradient scales) in the subject CMM are
subsidiary to the actual function of measuring or checking being
performed by the merchandise. Customs recently addressed the
issue of a CMM using a tactile probe to perform the measurement
of an article and containing glass moire fringe scales to set the
location of the tactile probe in HQ 958886, dated April 5, 1996.
Because the optical elements in that CMM were used to merely set
the location of the tactile probe and were not performing any
measuring themselves, Customs determined that the optical
elements were subsidiary to the function of the subject CMMs.
(See attached copy of HQ 958886 for a full analysis of the issue
of subsidiary.)
Like the CMMs in HQ 958886, the Bravo CMM uses the optical
gradient scales to position the touch probe. Therefore, we find
that the optics in the Bravo CMM are used for a subsidiary
purpose. Because the optics are subsidiary to the function of
the Bravo CMM, the subject merchandise is classifiable under
subheading 9031.80.00, HTSUS.
HOLDING:
The Bravo CMM is classifiable under subheading 9031.80.00,
HTSUS, which provides for: "[m]easuring or checking instruments,
appliances and machines, not specified or included elsewhere in
this chapter. . . : [o]ther instruments, appliances and
machines. . . . " Goods classifiable under this provision have a
duty rate of 4.9 percent ad valorem.
The protest should be GRANTED. 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
Attachment: HQ 958886