HQ 080294: Tariff classification of the HDD optical disk flaw inspection system from Japan.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                  HQ 080294

                                    April 21 1989

          CLA-2 CO:R:C:G 080294 APS

          CATEGORY:  CLASSIFICATION

          TARIFF NO.: 9031.40.0000

          Ms. Evelyn F. Reep
          Texmac Inc.
          2731 Interstate Street
          P.O. Box 668128
          Charlotte, North Carolina 28266

          Re:  Tariff classification of the HDD optical disk flaw
               inspection system from Japan.

          Dear Ms. Reep:

               Your letter dated March 11, 1987, to the Customs Service in
          New York has been referred to Customs Headquarters for reply.

          FACTS:

               The merchandise under consideration is an inspection system
          used to detect flaws in optical disks.  The inspection system
          contains a transmission lamp, a reflection lamp, a reflection
          type CCD camera and a transmission type CCD camera (image
          sensors).

               In operation, the optical disk to be inspected is rotated
          between the transmission lamp and inspection lamp.  The high
          speed linear arrayed image sensors act as the image pick-up
          element and detect flaws on the optical disk revealed by the
          light source unit.  Video signals from the linear arrayed image
          sensors are converted into electrical signals and then processed
          in the flaw decision circuit.  The reflection and transmission
          projection correspond to a range of flaws such as silver,
          pinholes, scratches, bubbles, black spots, foreign matter, burned
          dust, or thread.

               The result of the optical scanning process can be a printed
          read-out of the number of flaws by size (large, medium, small),
          or very small; or a printed colored flaw map showing where the
          flaws are located on the disk, or a display of the flaws on a
          color monitor for inspection by the operator.















                                        - 2 -

          ISSUE:

               Is the inspection device "optical" for purposes of the
          Harmonized Tariff Schedule of the United States Annotated
          (HTSUSA).

          LAW AND ANALYSIS:

               Additional U.S. note 3 to Chapter 90, HTSUSA provides that
          the term "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 elements are for
          some subsidiary purpose.

               The drawing you submitted displays the inner parts of the
          transmission type and reflection type cameras.  It shows that
          they contain lenses and mirrors for picking up and detecting the
          flaws which are exposed on the disk by the light source unit.
          These optical elements are required for the operation of the
          device and are not subsidiary.  Thus, the system is clearly
          optical.

               The results obtained by the optics are processed by a
          decision circuit which decides the Go/NoGo output of the system.
          There is no human intervention in the system as the final product
          is in the form of a paper read out, a printed colored flaw map or
          an image on a color monitor.

               In our opinion the device should be classified as an optical
          instrument.  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.

               Cf. Timex Corporation v. The United States, Slip Op. 88-90
          July 13, 1988.  In discussing a provision of the Tariff Schedules
          of the United States in connection with another matter, the Court
          commented that when that tariff schedule was enacted, it left the
          wording of earlier statutes and the reasoning of earlier cases
          behind.  The Court remarked that the new statute was a less
          tortured one and it should not be burdened with outmoded
          technicalities which lead to absurd results.  It should be read
          to effectuate the intent of Congress.  We think this reasoning is
          equally applicable to the classification of optics under the
          HTSUSA.




































































                                        - 3 -

          HOLDING:

               The HDD optical disk flaw inspection system is classifiable
          as measuring or checking instruments, appliances, and machines
          ***: Other optical instruments and appliances under subheading
          9031.40.0000 HTSUSA and dutiable as products of Japan at the rate
          of 10 percent ad valorem.

                                        Sincerely,





                                        John Durant, Director
                                        Commercial Rulings Division













































          CO:R:C:G:ASCHIFFLIN:JH:11/18/88:4/20/89