CLA-2 CO:R:C:M 954682 RFA
District Director of Customs
1215 Royal Lane
Post Office Box 789
Dallas/Fort Worth, TX 75261
RE: Protest 5501-93-100209; Ampoule Inspection Machine (AIM);
Other Optical Measuring and Checking Instruments and
Appliances; Aid or Enhance Human Vision; Functional Unit;
Section XVI, Note 4; Additional U.S. Note 3 to Chapter 90;
EN 9031.40
Dear District Director:
The following is our decision regarding the request for
further review of Protest 5501-93-100209, which concerns the
classification of the Eisai Ampoule Inspection Machine (AIM)
under the Harmonized Tariff Schedule of the United States
(HTSUS). The subject entry was liquidated on March 26, 1993.
The protest was timely filed on June 15, 1993.
FACTS:
The subject merchandise is the Eisai Ampoule Inspection
Machine (AIM) which is designed for foreign particulate detection
in glass ampoules, vials and large infusion bottles. The AIM has
replaced traditional inspection by the naked eye and conventional
inspection by machines. The AIM operates in the following
manner: containers such as ampoules, vials, etc., which are
filled with liquid injectables are conveyed onto the slowly
rotating inspection table. On the inspection table, the
container is spun three times and inspected twice for foreign
particulate matter and once for fill. Each container is spun at
a high speed and braked just before entering the inspection beam.
When in the beam, only the solution inside the glass vials is
still rotating. Any particulate matter present in the solution
blocks the light. The sensor perceives the light variation
caused by the particulate matter and judges the container
acceptable or faulty, in accordance with the preset sensitivity
level. The containers judged acceptable are collected into a
separate hopper.
The main components of the AIM are the feed belt, the infeed
starwheel, two light projectors, the spinning motor, the
discharge starwheel, the screw conveyer, the sorting pendulum and
the collection hopper. The detection system consists of a light
source, a lens, another lens, and a photodiode array. The first
lens focuses the incoming light rays from the light bulb, and the
second lens directs the light, after it has passed through the
spinning liquid in the glass ampoule, to the photodiode array.
The merchandise was entered under subheading 9030.39.00,
HTSUS, as other measuring or checking electrical quantities. The
entry was liquidated under subheading 9031.40.00, HTSUS, as other
optical measuring and checking instruments.
Classification of the merchandise under subheading
9027.80.40, HTSUS, as instruments and apparatus for measuring or
checking quantities of light, and under subheading 9031.80.00,
HTSUS, as other measuring or checking instruments, are also under
consideration. In a meeting at Customs Headquarters, protestant
withdrew their claim of classification under heading 9030, HTSUS.
The following subheadings are under consideration:
9027.80.40: Instruments and apparatus for physical or chemical
analysis (for example, polarimeters,
refractometers, spectrometers, gas or smoke
analysis apparatus; instruments and apparatus for
measuring or checking viscosity, porosity,
expansion, surface tension or the like;
instruments and apparatus for measuring or
checking quantities of heat, sound or light
(including exposure meters). . . : [o]ther
instruments and apparatus: [e]lectrical. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 4.9 percent ad valorem.
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 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 AIM is classifiable as instruments and apparatus
for measuring or checking quantities of light, or as other
checking or measuring instruments and apparatus, or 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 primary issue before Customs is whether the AIM performs
a "measuring" or "checking" function and under what heading 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 Customs Cooperation Council's 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 Fed.Reg. 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 950196 (January 8, 1992); HQ 088025 (January 17, 1991).
The protestant states that the AIM "measures" the light
received on the photodiode array after it has passed through the
ampoule. While the AIM only passes on each ampoule with an
accept/reject judgment, the detection system must read the amount
of light received and compare it against a preset detection
sensitivity level. If the amount of light is lower than the
preset level (indicating a shadow), the detection system will
have identified foreign particulate. The protestant argues that
the AIM is "measuring" the quantity of light striking the
photodiode array and is therefore classifiable under heading
9027, HTSUS.
The AIM consists of the feed belt, the infeed starwheel, the
spinning motor, the discharge starwheel, the screw conveyer, the
sorting pendulum, the collection hopper, and the light detection
system. Note 3 to Chapter 90, HTSUS, states that: "[t]he
provisions of note 4 to section XVI apply to this chapter." Note
4 to section XVI provides as follows:
Where 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 AIM meets the definition of a functional unit because it
consists of individual components intended to contribute together
to a clearly defined function of checking ampoules for foreign
particulate and for fill. We find that the AIM is not
"measuring" quantities of light but checking ampoule vials and
their liquid fills to determine whether or not they should be
accepted or rejected. After checking the quantity of light being
reflected through the ampoules, the AIM sorts the vials based
upon their acceptability. Because the AIM is not "measuring"
quantities of light, we find that classification under heading
9027, HTSUS, is precluded. Therefore, we find that the AIM is
classifiable as other checking or measuring instruments under
heading 9031, HTSUS.
Under the Tariff Schedules of the United States (TSUS), the
precursor to the HTSUS, Customs classified an Eisai AIM under
item 712.49, TSUS, which provided for non-optical electrical
measuring, checking, analyzing or automatically-controlling
instruments and apparatus. See HQ 071583, dated December 5, 1986.
The basis for that decision was due to the court's decision in
EAC Engineering v. United States, 623 F.Supp. 1255, 9 CIT 534
(1985), which determined that for an article to be classified as
an optical instrument it must aid the human vision. Based upon
HQ 071583, the protestant argues that the merchandise should be
classified under subheading 9031.80.00, HTSUS, as non-optical
measuring or checking instruments. The protestant argues that
the AIM does not aid human vision and that is a requirement for
optical equipment.
Congress has indicated that earlier rulings must not be
disregarded in applying the Harmonized Code. The conference
report to the Omnibus Trade Bill states that on a case by case
basis prior decisions should be considered instructive in
interpreting the HTSUS, particularly where the nomenclature
previously interpreted in those decisions remains unchanged and
no dissimilar interpretation is required by the text of the
HTSUS. H.Rep No. 100-576, 100th Cong., 2D Sess. 548 (1988) at
550.
To assist in our understanding of the scope of heading 9031,
HTSUS, we refer to EN 9031.40, page 1533, which states that:
[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.
Since the enactment of the HTSUS, Customs has consistently
held that the requirement of instruments and appliances to be
classified as optical only when they aided or enhanced human
vision is no longer valid based upon the advancement of
technology and the language in EN 90.31 and EN 9031.40. See, HQ
953312, dated June 17, 1993; HQ 952000, dated January 28, 1993;
HQ 080294, dated April 21, 1989. If the AIM meets the definition
of "optical instruments" or "optical appliances" under the HTSUS,
then classification under subheading 9031.80.00, HTSUS, will be
precluded.
Additional U.S. Note 3 to Chapter 90, HTSUS, 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 lenses in the AIM direct light from the light source to
the ampoule and then onto the photodiode array. We find that the
use of the optical elements is not subsidiary. Without the
optical elements, the AIM could not perform its function of
detecting foreign particulate in the solution and check for fill.
Therefore, we find that the AIM meets the definitions of
"optical" appliances" and "optical instruments" under Additional
U.S. Note 3 to Chapter 90. The AIM is an optical checking
instrument and is classifiable under subheading 9031.40.00, HTSUS. Therefore, classification of the AIM as non-optical
checking instruments under subheading 9031.80.00, HTSUS, is
precluded.
HOLDING:
The AIM is classifiable under subheading 9031.40.00, HTSUS,
as other optical checking or measuring instruments.
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, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division