HQ 956749: Protest 3501-93-100582; Coordinate Measuring Machines (CMMs); Measuring or Checking Instruments, Appliances and Machines; Optical Appliances and Optical Instruments; Subsidiary; Additional U.S. Note 3 to Chapter 90; HQs 088941, 955230, 958886

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 956749

                          April 8, 1996

CLA-2 RR:TC:MM 956749  RFA

CATEGORY: Classification

TARIFF NO.: 9031.80.00


Port Director of Customs
110 S. 4th Street
Minneapolis, MN 55401

RE:  Protest 3501-93-100582; Coordinate Measuring Machines
     (CMMs); Measuring or Checking Instruments, Appliances and
     Machines; Optical Appliances and Optical Instruments;
     Subsidiary; Additional U.S. Note 3 to Chapter 90; HQs
     088941, 955230, 958886


Dear Port Director:

     The following is our decision regarding Protest 3501-93-100582, which concerns the classification of coordinate measuring
machines (CMMs) under the Harmonized Tariff Schedule of the
United States (HTSUS). 

FACTS:

     The subject merchandise consists of parts of a coordinate
measuring machine (CMMs), labeled as "PRISMO".  The CMM is used
to measure parts in relation to pre-set tolerances.  The
measurements are taken by use of an electrical mechanical probe
head with a stylus.  The stylus is typically a ceramic or metal
shaft surmounted with a round ball which travels along the part
to be measured while it is mounted on a granite table.  The
actual measurement occurs when the probe is triggered by touching
the part being measured, which interrupts an electrical current. 
The probe is called an electrical-mechanical probe.  

     The diffraction grating is the glass scale on the guideway. 
There are three diffraction gratings (glass scales) on the three
axes,  X, Y, and Z.  The glass scale has a grading deposited onto
the glass, read by a photosin readerhead or by a readerhead
consisting of four light emitting diodes (LEDs) with four
corresponding receiving diodes which emit light through the
grading of the scale. 

     The merchandise was entered in 1993, under subheading
9031.90.60, HTSUS, as parts and accessories of non-optical
measuring and checking instruments and apparatus. The entry was
liquidated  on September 17, 1993, under subheading 9031.90.40,
HTSUS, as parts and accessories of optical measuring and checking
instruments and apparatus.  The protest was timely filed on
December 16, 1993. 

     The following subheadings from the 1993 HTSUS are under
consideration:

     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 duty
          rate of 10 percent ad valorem.

     9031.80.00:    Other instruments,  appliances and  machines.
                    . . . 

          Goods classifiable under this provision have a duty
          rate of 4.9 percent ad valorem.

     9031.90:  Parts and accessories:

     9031.90.40          Of other optical instruments and
                         appliances, other than test benches. . .
                         . 

          Goods classifiable under this provision have a duty
          rate of 10 percent ad valorem.

     9031.90.60:         Other . . . . 

          Goods classifiable under this provision have a duty
          rate of 4.9 percent ad valorem.

ISSUE:

     Whether the Prismo CMM is classifiable as an optical
measuring and checking instrument, or whether the optics are for
a subsidiary purpose, 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.

     To classify merchandise as an "optical appliance" or an
"optical instrument", it must meet the requirements of Additional
U.S. Note 3 to Chapter 90, HTSUS, which 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 protestant agrees that the Prismo CMM is provided for
under heading 9031, HTSUS, as a measuring or checking
instruments, appliances and machines.   However, the protestant
claims that any optics which are contained within the system are
subsidiary and that the merchandise is classifiable under
subheading 9031.80.00, HTSUS, as other measuring and checking
instruments. 

     A tariff term that is not defined in the HTSUS or in the
Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), which constitute the official interpretation of the
HTSUS, 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 HQ 088941, dated January 16, 1992, Customs, citing
Webster's II New Riverside University Dictionary (1984),p. 1155,
defined "subsidiary" as "[s]erving to supplement or assist . . .
[s]econdary in importance: subordinate."  Customs further stated
that the "[t]he meaning of 'subsidiary' has nothing to do with
the amount of time optics are used in the overall use of a
device, but it relates more to the type of task which the optics
perform when being used in the operation of the device." See also
HQ 955230, dated July 12, 1994.

     The issue to be determined is whether the optical element
(i.e., the glass moire scales) in the subject CMM are subsidiary
to the actual function of measuring or checking being performed
by the merchandise.  Customs recently addressed the issue of a
CMM using a tactile probe to perform the measurement of an
article and containing glass moire fringe scales to set the
location of the tactile probe in HQ 958886, dated April 5, 1996.  
Because the optical elements in that CMM were used to merely set
the location of the tactile probe and were not performing any
measuring themselves, Customs determined that the optical
elements were subsidiary to the function of the subject CMMs.
(See attached copy of HQ 958886 for a full analysis of the issue
of subsidiary.)

     Like the CMMs in HQ 958886, the Prismo uses the optical
glass scales to position the touch probe.  Therefore, we find
that the optics in the Prismo CMM are used for a subsidiary
purpose.  Because the optics are subsidiary to the function of
the Prismo CMM, it would be classifiable under subheading 9031.80.00,
HTSUS.  Therefore, the parts of the Prismo CMM are classifiable
under subheading 9031.90.60, HTSUS. 

HOLDING:

     The CMM Prismo parts are classifiable under subheading
9031.90.60, HTSUS, which provides for: "[m]easuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter. . . :[p]arts and accessories: [o]ther 
. . . . "  Goods classifiable under this provision have a duty
rate of 4.9 percent ad valorem.

     The protest should be GRANTED.  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
                              Tariff Classification Appeals
Division

Attachment: HQ 958886