CLA-2 CO:R:C:M 954117 LTO
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945
RE: Protest 1001-92-107315; Sira Image Automation laser-based
inspection system; subheading 9031.80.00; HQ 080094, 080294,
084646, 952000, 953312, 953826; HSC, 7th Session (Doc. 36.457,
36.274 (HSC/6)); Timex Corp. v. U.S.; Digital Equipment Corp.
v. U.S.; chapter 90, add. U.S. note 3; "optical instruments"
Dear Regional Commissioner:
The following is our decision regarding Protest 1001-92-
107315, which concerns the classification of the Sira Image
Automation laser-based inspection system under the Harmonized
Tariff Schedule of the United States (HTSUS). The subject
merchandise was entered on October 12, 1991, and the entry was
liquidated on September 11, 1992. The protest was timely filed on
December 8, 1992.
FACTS:
The merchandise at issue is the Sira Image Automation laser-
based inspection system, which is used to identify several kinds of
defects in flat homogenous products as they are being manufactured.
The system's operation is initiated by transmission of laser light
on the product being inspected. The system contains lenses which
focus the laser beam as appropriate to the surface of the products
being examined, and mirrors which control the direction of the
beam. The transmitted light passes through the lenses, bounces off
a mirror and onto a mirrored, rotating polygon. The polygon, which
causes the beam to be swept across the product, enables the system
to remain stationary while in operation.
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When the product is scanned, each type of defect (e.g., holes,
bumps, fissures) causes the light to behave differently. The light
is changed in intensity, direction or coherence. The light is then
directed back along the beam of incidence by a retro-reflector.
The return beam reaches the polygon and passes through a high
resolution imaging lens onto a photomultiplier tube. The
photomultiplier converts the light energy to electric energy and
transmits this electrical signal to the computer bank. Within the
computer processor, the electrical impulses are read and the types
and extent of defects are inferred and displayed on a color coded
chart.
The system was entered under subheading 9031.80.00, HTSUS,
which provides for other measuring and checking instruments,
appliances and machines. The system was classified upon
liquidation under subheading 9031.40.00 (now, 9031.40.80), HTSUS,
which provides for other optical measuring and checking instruments
and appliances. The protestant states that the optical components
of the system make up approximately 10-12 percent of the system's
total cost.
ISSUE:
Whether the Image Automation laser-based inspection system is
classifiable as other optical measuring and checking instruments
and appliances under subheading 9031.40.00, 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 (EN)
constitute the Customs Co-operation Council's official
interpretation of the Harmonized System. While not legally
binding, 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 (Aug. 23, 1989).
The subheadings at issue are as follows:
9031 Measuring or checking instruments,
appliances and machines, not specified
or included elsewhere in this chapter;
profile projectors; parts and
accessories thereof:
Other optical instruments and
appliances:
9031.40.00 Other (10%) - 3 -
* * * * * * * * * * * * *
9031.80.00 Other instruments, appliances and
machines (4.9%)
Additional U.S. Note 3 to chapter 90, HTSUS, states that 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 protestant claims that the Image Automation laser-based
inspection system does not aid human vision, and therefore, cannot
be considered an "optical instrument." Customs has consistently
rejected this restrictive interpretation of Additional U.S. Note 3
to chapter 90.
This argument was addressed soon after the implementation of
the HTSUS in HQ 080294, dated April 21, 1989, wherein we considered
the classification of an inspection system used to detect flaws in
optical disks. The device's inspection system contained a
transmission lamp, reflection lamp, reflection type CCD camera and
transmission type CCD camera (image sensors). The cameras
contained lenses and mirrors for picking up and detecting the flaws
exposed on the disk by the light source unit. While the device did
not provide a direct aid to human vision, we held that it should be
classified as an optical instrument under subheading 9031.40.00,
HTSUS. In that ruling we reasoned as follows:
Although there may be some indication in the case law
under earlier tariff acts that an optical instrument
must aid or enhance human vision directly it would
seem that this is an outmoded concept. Where the
information obtained by the optics is either so
rapidly produced or so voluminous or so exquisitely
fine that the human brain cannot possibly process it
and an intermediate device is required to process the
information to present it in useable form, there is,
in a sense, an aid or an enhancement of human vision,
albeit not that conceived of by the framers of the
earlier tariff acts.
We then stated that the U.S. Court of International Trade's
reasoning in Timex Corporation v. United States, 691 F.Supp. 1445,
(1988), was applicable to the classification of optics under the
HTSUS. In Timex Corporation, the Court, in discussing a provision
of the Tariff Schedules of the United States (TSUS), commented that
when that provision was enacted, "it left the wording of earlier
statutes and the reasoning of earlier cases behind." Id. at 1448.
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The Court remarked that the new statute was "a new less-tortured
statute; it should not be burdened with outmoded technicalities
which lead to absurd results . . . ." Id. at 1448-9. See also
Digital Equipment Corporation v. United States, 710 F.Supp. 1381,
1382 (1988) (wherein the Court held that the case was one in which
"the integrity of the Tariff Schedules will be far greater
preserved if artificial classifications are not rationalized under
antiquated schedules neither designed nor intended for present day
application").
In HQ 084646, dated September 13, 1989, we reiterated our
position "that an instrument is an optical instrument for
classification purposes if the optics are required to process
. . . the information in order to present it in usable form. This
constitutes an aid or an enhancement of human vision." See also HQ
952000, dated January 28, 1993; HQ 953312, dated June 17, 1993; HQ
953826, December 14, 1993.
Thus, the fact that the Image Automation laser-based
inspection system does not provide a direct aid or enhancement to
human vision does not take it beyond the scope of subheading
9031.40.00, HTSUS. See also EN 90.31, pg. 1533, which states that
subheading 9031.40, HTSUS, "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."
The protestant also contends that the optical components of
the system perform only a subsidiary role in the operation of the
instrument. The protestant states that the optical elements
neither provide data nor perform a measurement function per se,
rather they are used exclusively to direct and focus light emitted
from and returning to the system. The protestant further states
that the optical elements merely serve to initially focus the laser
light onto the object being scanned and segregate the return beam
onto the photomultiplier tubes, which convert the light energy to
electrical energy, and trigger the computerized process of defect
detection.
Finally, the protestant states that the system could be
reconfigured to operate without the series of lenses and mirrors
which it currently employs (i.e., positioning the laser gun in the
scanner box so as to directly strike the rotating polygon; placing
the scanner box on a sliding track that would permit the
appropriate convergence of the laser beam via distance from the
target object, or utilize a series of interchangeable lasers to
achieve the same purpose; etc.). However, the system clearly could
not perform its primary function without the laser, an optical
instrument. See HQ 080094, dated September 3, 1987; Harmonized
System Committee, 7th Session (Doc. 36.457, 36.274 (HSC/6)).
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It is our opinion that, as presently configured, the optical
components of the system, which make up only a small portion of the
total value of the system, are integral to the basic
function of the apparatus, which is to the inspection of flat
products. See HQ 952000. Accordingly, the system is an "optical
instrument" for tariff purposes, and is classifiable under
subheading 9031.40.00, HTSUS.
HOLDING:
The Sira Image Automation laser-based inspection system is
classifiable under subheading 9031.40.00, HTSUS.
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 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
Commercial Rulings Division