HQ 960429

August 19, 1998

CLA-2 RR:CR:GC 960429 RFA

CATEGORY: Classification

TARIFF NO.: 9031.49.80

Port Director

U.S. Customs Service

Second and Chestnut Streets

Philadelphia, PA 19106

RE: Protest 1101-97-100115; TriScan Inspection System; TriScan

In-Line Process Controller; TriScan Calibration Toolkit for

Chip Mounting Machine; Optical Measuring or Checking

Instruments, Appliances, and Machines; Process Controller;

Machines and Mechanical Appliances Having Individual

Functions; Headings 8479, 8537, 9031; Legal Note 1(m) to

Section XVI; HQs 954117, 954682

Dear Port Director:

The following is our decision regarding Protest 1101-97-100115, which
concerns the classification of the TriScan

Inspection System and the TriScan Calibration Toolkit under the

Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise consists of the TriScan Inspection

System, also referred to as TriScan In-Line Process Controller,

and the TriScan Calibration Toolkit. According to the

information provided, the TriScan Inspection System is a 3-D

solder paste inspection/verification system. It scans printed

circuit boards (PCBs) coated with solder paste prior to automatic

component mounting to check whether or not there is proper

placement of solder on the board.

The TriScan performs the scanning of the PCB by sending a

laser-beam on a rotating polygon with 20 facet mirrors. An

optical system turns the reflected beam into a telecentric

scanning beam that is perpendicular to the scanned area at all

times. The reflected light is offset by height variations on the

scanned surface, and focussed on two position-sensitive devices

which convert the spot location into height and intensity

information. This method is referred to as double triangulation.

The TriScan will then compare this information with a preset

comparison and will make the determination as to whether the PCB

passes or fails. If it passes, the PCB moves to the next station

for automatic component insertion. If it fails, the PCB is

routed to another lift/buffer unit.

The only information provided about the toolkit is that it

includes equipment for the adjustment of the parameters and minor

replacement parts for the TriScan.

The merchandise was entered under subheading 8479.89.95,

HTSUS, as other machines and mechanical appliances having

individual functions not specified or included elsewhere in this

chapter. The entry was liquidated on November 8, 1996, under

subheading 8537.10.90, HTSUS, as programmable controllers. The

protest was timely filed on February 6, 1997.

Classification of the merchandise under subheading

9031.49.80, HTSUS, as other optical measuring or checking

instruments, is also under consideration.

The 1996 subheadings under consideration are as follows:

8479.89.95: Machines and mechanical appliances having

individual functions, not specified or

included elsewhere in this chapter. . . :

\[o\]ther: \[o\]ther: \[o\]ther. . . .

Goods classifiable under this provision have a general,

column one rate of duty of 3.2 percent ad valorem.

8537.10.90: Boards, panels, consoles, desks, cabinets and

other bases, equipped with two or more

apparatus of heading 8535 or 8536, for

electric control or the distribution of

electricity, including those incorporating

instruments or apparatus of chapter 90, and

numerical control apparatus, other than

switching apparatus of heading 8517:

\[f\]or a voltage not exceeding 1,000 V:

\[o\]ther. . . .

Goods classifiable under this provision have a general,

column one rate of duty of 4.3 percent ad valorem.

9031: Measuring or checking instruments, appliances and

machines, not specified or included elsewhere in

this chapter. . . ; parts and accessories thereof:

9031.49.80: Other optical instruments and appliances:

\[o\]ther: \[o\]ther. . . .

Goods classifiable under this provision have a general,

column one rate of duty of 7.4 percent ad valorem.

9031.90.55: Parts and accessories: \[o\]f other optical

instruments and appliances, other than test

benches: \[o\]ther. . . .

Goods classifiable under this provision have a general,

column one rate of duty of 7.4 percent ad valorem.

ISSUE:

Whether the TriScan Inspection System and the TriScan

Calibration Toolkit are classifiable as a process controller, or

as machines and mechanical appliances having individual

functions, or as a measuring or checking instruments 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 protestant claims classification under heading 8479,

HTSUS, as other machines and mechanical appliances having

individual functions not specified or included elsewhere in this

chapter. The port re-classified the merchandise under heading

8537, HTSUS, as process controllers. Both provisions are within

section XVI, and are subject to Legal Note 1(m) to Section XVI,

HTSUS, which states that: \"\[t\]his section does not cover. . .

\[a\]rticles of chapter 90\". Therefore, if the merchandise is

provided for under heading in chapter 90, it cannot be classified

under heading 8479 or 8537, HTSUS.

Heading 9031, HTSUS, provides for measuring or checking

instruments, appliances and machines. The first issue is whether

the TriScan performs a \"measuring\" or \"checking\" function and

under what subheading 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 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 F.R. 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: \"\[t\]o 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 954682 (July 14, 1994); HQ

950196 (January 8, 1992); HQ 088025 (January 17, 1991). Based

upon the above definitions, we find that the TriScan Inspection

System, which checks the amount of solder paste on PCBs, meets

the terms of heading 9031, HTSUS, as a measuring and checking

instrument.

In HQ 954117, dated August 22, 1994, Customs determined that

the Sira Image Automation laser-based inspection system, which

was designed to identify defects in flat homogenous products, was

classifiable as an optical checking instrument under subheading

9031.49.80 (then 9031.40.00), HTSUS. The system incorporated

lenses which focused its laser beam onto the surface of the

products being examined, mirrors which controlled the direction

of the beam and a mirrored, rotating polygon, which caused the

beam to be swept across the product. The lenses, mirrors and

mirrored polygon were necessary to bend, refract, etc., the laser

beam in order to focus or amplify the light onto the product.

In HQ 954682, dated July 14, 1994, Customs determined that

an Ampoule Inspection Machine (AIM) which was designed for

foreign particulate detection in glass ampoules, was also

classifiable under subheading 9031.49.80 (then 9031.40.00),

HTSUS. The AIM\'s detection system consisted of lenses and a

light source reflecting through the ampoules and onto a

photodiode array to detect foreign particulate.

In the present situation, the TriScan Inspection System uses

a laser-based system to check the level of solder paste on a PCB

to ensure that it has a sufficient level of solder paste before

continuing in the manufacturing process. If the TriScan finds a

deficient level of solder paste on a PCB, that PCB is removed

from the manufacturing process. This function is similar to the

inspection systems in HQ 954117 and HQ 954682. Based upon these

rulings, we find that the TriScan is also classifiable under

subheading 9031.49.80, HTSUS, as other optical measuring or

checking instruments. Because the TriScan is classified in

heading 9031, it cannot be classified in heading 8479 or 8537

based upon the application of Legal Note 1(m) to Section XVI,

HTSUS.

In classifying the merchandise under heading 8537, HTSUS,

the port cited HQ 083189, dated October 24, 1989. In HQ 083189,

Customs determined that the Laser Vision System (\"LVS\") checked

the location of where welding or gluing is needed, and sent the

information to the control unit which translated the information

into movement of the operational equipment. Because the LVS used

the information it obtained to send instructions to another

machine to perform an operation (i.e., welding or gluing),

Customs found that the LVS met the terms of heading 8537, HTSUS,

as a process controller. The TriScan Inspection System is

distinguishable from the LVS in HQ 083189, because the TriScan

does not send instructions to another machine to perform an

operation such as gluing or welding. Therefore, we find that HQ

083189 is not applicable for determining the classification of

the subject merchandise.

The only information provided by the protestant regarding

the toolkit is that it includes equipment for the adjustment of

the parameters and minor replacement parts for the TriScan.

Based upon this limited information, we find that the toolkit is

parts and accessories for the TriScan, classifiable under

subheading 9031.90.55, HTSUS.

HOLDING:

The TriScan Inspection System is classifiable under

subheading 9031.49.80, HTSUS, which provides for: \"\[m\]easuring or

checking instruments, appliances and machines, not specified or

included elsewhere in this chapter. . . : \[o\]ther optical

instruments and appliances: \[o\]ther: \[o\]ther. . . .\"

The toolkit is classifiable under subheading 9031.90.55,

HTSUS, which provides for: \"\[m\]easuring or checking instruments,

appliances and machines, not specified or included elsewhere in

this chapter; parts and accessories thereof: \[p\]arts and

accessories: \[o\]f other optical instruments and appliances, other

than test benches: \[o\]ther. . . .\" Goods classifiable under

these provisions have a general, column one rate of duty of 7.4

percent ad valorem.

Because reclassification of the merchandise as indicated

above will result in a higher rate of duty than claimed, you

should DENY the protest in full. 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, Freedom of Information Act

and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division