CLA-2 CO:R:C:M 950947 AJS
District Director
U.S. Customs Service
40 South Gay Street
Baltimore, MD 21202
RE: Protest 1303-91-100355; Gear measuring center; Subheading
9031.40.00; Chapter 90, Additional U.S. Note 3.
Dear District Director:
Protest for further review number 1303-91-100355, dated July
8, 1991, was filed against the tariff classification of a "Gear
Measuring Center" (GMC) within subheading 9031.40.00, Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The GMC is designed to measure large and heavy workpieces
with the same accuracy as small lightweight gears. More
specifically, it is used to measure both the functional profile
and pressure angle of the involute flank, and the helix angle and
tooth trace on external and internal gears. Additional attach-
ments allow for the automatic checking of pitch error and surface
finish on external gears.
The GMC contains linear and angular optical elements which
are used to set the location of the measuring slide of the GMC.
These elements are not used to perform any measuring functions.
The Pick-up LMT portion of the GMC performs electronic measuring
and recording for the system. The LMT contains induction coils
and does not contain any optical elements.
ISSUE:
Whether the GMC is properly classifiable within subheading
9031.40.00, HTSUS, which provides for "other optical instruments
and appliances"; or classifiable within subheading 9031.80.00,
HTSUS, which provides for "other instruments, appliances and
machines".
-2-
LAW AND ANALYSIS:
Heading 9031, HTSUS, provides for "[m]easuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter . . ." There is no dispute that the
subject GMC satisfies this description. It is a machine used to
measure gears. Accordingly, the GMC satisfies the terms of
heading 9031, HTSUS, and is properly classifiable therein.
Subheading 9031.40.00, HTSUS, provides for other optical
measuring and checking instruments and appliances. The GMC was
initially classified within this subheading based on the
conclusion that the linear and angular optical elements were used
as part of the measuring system. The terms "optical appliances"
and "optical instruments" refer only to those devices which
incorporate one or more optical elements, but do not include any
devices in which the incorporated optical element or elements are
solely for viewing a scale or some other subsidiary purpose.
Chapter 90, Additional U.S. Note 3. Upon further examination, we
find that the subject optical elements are used for a subsidiary
purpose. They do not perform any measuring themselves but are
used merely to set the location of the measuring slide of the
GMC. Therefore, the GMC is not properly classifiable within
subheading 9031.40.00, HTSUS.
Subheading 9031.80.00, HTSUS, provides for other measuring
or checking instruments, appliances and machines. The protestant
contends that the GMC satisfies this description. As stated
previously, there is no dispute that the GMC satisfies the terms
of heading 9031, HTSUS. It is a machine used for measuring gears
and it is also not provided for within any other subheading of
this heading. Accordingly, the GMC satisfies the terms of
subheading 9031.80.00, HTSUS, and is properly classifiable
therein.
HOLDING:
The Gear Measuring Center is properly classifiable within
subheading 9031.80.00, HTSUS, which provides for "other
instruments, appliances and machines". You should grant the
protest in full. A copy of this decision should be attached to
the Customs Form 19 and provided to the protestant as part of the
notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division