HQ 954929: Protest No. 1101-93-100379; Ampoule Inspection Machine; Chapter 90, Additional U.S. Note 3; HQ's 084646 and 080294; NY's 885569, 880800, and 875225; GRI 2(a); Section XVI, Note 1(m); 8479.89.90

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 954929
                        December 21, 1993


CLA-2 CO:R:C:M 954929 DWS

CATEGORY: Classification

TARIFF NO.: 9031.40.00

District Director
U.S. Customs Service
2nd and Chestnut Streets, Room 102
Philadelphia, PA 19106-2999

RE: Protest No. 1101-93-100379; Ampoule Inspection Machine;
    Chapter 90, Additional U.S. Note 3; HQ's 084646 and 080294;  
     NY's 885569, 880800, and 875225; GRI 2(a); Section XVI,
    Note 1(m); 8479.89.90 

Dear District Director:

     The following is our decision regarding the request for
further review of Protest No. 1101-93-100379 concerning your action
in classifying and assessing duty on an ampoule inspection machine
under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

     The merchandise consists of an ampoule inspection machine
(model no. V09-AVSB/60), manufactured in Germany.  The descriptive
literature, provided by the protestant, describes the machine as
an inspection machine for the visual inspection of particulate
matter in ampoules, vials, infusion bottles, and similar items. 
The machine rotates the ampoules, etc., which causes the
particulate matter to whirl.  A halogen light, powered through a
fiber optic system, provides a concentrated beam.  Light refracts
off of the particulate matter, causing it to glow. The inspection
machine can be used to detect glassware defects and microfissures,
as well as the presence of particulate matter.  There are different
light systems, magnifying lenses, and colored light filters to aid
in the detection of the various defects.  In its condition as
imported, the inspection machine is without its optical elements. 
However, the user can purchase these elements to assist the
operator during the inspection process.

      The merchandise was entered under subheading 8479.89.90,
HTSUS, as an other machine having individual functions, not
specified or included elsewhere in chapter 84, HTSUS.  The entry
was liquidated on March 17, 1993, under subheading 9031.40.00,
HTSUS, as an other optical instrument.  It is our understanding
that a facsimile of the Customs Form 19 was transmitted by counsel
of the protestant and received by Customs on June 15, 1993.  The
original of the Customs Form 19 was received by Customs on July 20,
1993.  Therefore, the protest was timely filed.

     The subheadings under consideration are as follows:

     8479.89.90: [m]achines and mechanical appliances having
                 individual functions, not specified or
                 included elsewhere in this chapter . . . :
                 [o]ther machines and mechanical appliances:
                 [o]ther: [o]ther.

     The general, column one rate of duty for goods classifiable
     under this provision is 3.7 percent ad valorem.

     9031.40.00: [m]easuring or checking instruments, appliances
                 and machines, not specified or included 
                 elsewhere in this chapter . . . : [o]ther       
                  optical instruments and appliances.

     The general, column one rate of duty for goods classifiable
     under this provision is 10 percent ad valorem.

ISSUE:

     Whether the ampoule inspection machine constitutes an
unfinished visual inspection machine.

     Whether the ampoule inspection machine is classifiable under
subheading 8479.89.90, HTSUS, as an other machine having individual
functions, not specified or included elsewhere in chapter 84,
HTSUS, or under subheading 9031.40.00, HTSUS, as an other optical
instrument.

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order. 
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.

      Chapter 90, additional U.S. note 3, HTSUS, states that:

     [f]or the purposes of this chapter, 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 element or
     elements are solely for viewing a scale or for some other
     subsidiary purpose.

     In HQ 084646, dated September 13, 1989, which held that a
laser inspection device was classifiable under subheading
9031.40.00, HTSUS, we stated that:

     [t]he optical elements incorporated into the system in
     issue are essential to its operation.  Furthermore, laser
     rays are routed through the optical elements.  The 
     relationship of these optical elements to the instrument
     are not subsidiary to the function of the instrument.
     Additional U.S. note 3, chapter 90, is noted and we
     determine that it does not preclude classification of
     the instrument as an optical instrument.

     Therefore, it is our position that a complete visual
inspection machine, with optical elements, meets the definition of
chapter 90, additional U.S. note 3, HTSUS, and is classifiable
under subheading 9031.40.00, HTSUS.  See also HQ 080294, dated
April 21, 1989, NY 885569, dated May 24, 1993, NY 880800, dated
December 21, 1992, NY 875225, dated July 1, 1992, in which various
inspection machines were held to be classifiable under subheading
9031.40.00, HTSUS.

     It is claimed that the optical elements are not essential to
the operation of the subject inspection machine.  We disagree.  In
the submitted descriptive literature, in discussing the use of the
machine, the role of halogen light, for example, powered through
a fiber optic system, appears to be an important part of the
inspection process.  The literature provides that there are several
optional lighting systems.  However, we interpret that to mean that
in using the machine, an operator can use one of several lighting
systems available, not that an operator has the option of whether
or not to use a lighting system.

     We must now determine whether the subject inspection machine,
imported without optical elements, constitutes an unfinished visual
inspection machine as defined by GRI 2(a).  It states that:

      [a]ny reference in a heading to an article shall be taken to
     include a reference to that article incomplete or           
      unfinished, provided that, as entered, the incomplete or
     unfinished article has the essential character of the
     complete or finished article.  It shall also include a      
      reference to that article complete or finished (or falling 
       to be classified as complete or finished by virtue of this 
       rule), entered unassembled or disassembled.

     In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized.  The Explanatory Notes, although not dispositive, are to
be used to determine the proper interpretation of the HTSUS.  54
Fed. Reg. 35127, 35128 (August 23, 1989).  Explanatory Note
3(b)(VIII) (p. 4) states that:

     [t]he factor which determines essential character will vary 
      as between different kinds of goods.  It may, for example, 
       be determined by the nature of the material or component, 
        its bulk, quantity, weight or value, or by the role of a 
         constituent material in relation to the use of the goods.

     It is our position that the subject inspection machine,
imported without the optical elements but with all of the other
parts, imparts the essential character of a complete visual
inspection machine.  The fact that different optical systems are
interchangeable with the machine supports this finding.

     Therefore, the inspection machine is classifiable under
subheading 9031.40.00, HTSUS.

     Section XVI, note 1(m), HTSUS, states that:

     [t]his section does not cover:

     (m) Articles of chapter 90.

     Consequently, because the inspection machine is classifiable
in chapter 90, HTSUS, it is precluded from classification in
chapter 84, HTSUS.

HOLDING:

     The ampoule inspection machine is classifiable under
subheading 9031.40.00, HTSUS, as an other optical instrument.

      The protest should be denied 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, Lexis, Freedom of
Information Act, and other public access channels.

                           Sincerely,



                           John Durant, Director