HQ 954682

July 14, 1994

CLA-2 CO:R:C:M 954682 RFA

CATEGORY: Classification

TARIFF NO.: 9031.40.00

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