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.
FACTS:
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.
ISSUE:
Is the VA series CMM an optical measuring or checking
instrument?
LAW AND ANALYSIS:
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:
(I) MEASURING OR CHECKING INSTRUMENTS,
APPLIANCES AND MACHINES
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.
HOLDING:
The CMM is classifiable in subheading 9031.40.00, HTSUS,
with dutiable at 10% ad valorem.
Sincerely,
John Durant, Director