Protest 1303-91-100355; Gear measuring center; Subheading9031.40.00; Chapter 90, Additional U.S. Note 3.

HQ 950947 February 25, 1992 CLA-2 CO:R:C:M 950947 AJS CATEGORY: Classification TARIFF NO.: 9031.80.00 District Director U.S. Customs Service 40 South Gay Street Baltimore, MD 21202 RE: Protest 1303-91-100355; Gear measuring center; Subheading 9031.40.00; Chapter 90, Additional U.S. Note 3. Dear District Director: Protest for further review number 1303-91-100355, dated July 8, 1991, was filed against the tariff classification of a "Gear Measuring Center" (GMC) within subheading 9031.40.00, Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The GMC is designed to measure large and heavy workpieces with the same accuracy as small lightweight gears. More specifically, it is used to measure both the functional profile and pressure angle of the involute flank, and the helix angle and tooth trace on external and internal gears. Additional attach- ments allow for the automatic checking of pitch error and surface finish on external gears. The GMC contains linear and angular optical elements which are used to set the location of the measuring slide of the GMC. These elements are not used to perform any measuring functions. The Pick-up LMT portion of the GMC performs electronic measuring and recording for the system. The LMT contains induction coils and does not contain any optical elements. ISSUE: Whether the GMC is properly classifiable within subheading 9031.40.00, HTSUS, which provides for "other optical instruments and appliances"; or classifiable within subheading 9031.80.00, HTSUS, which provides for "other instruments, appliances and machines". -2- LAW AND ANALYSIS: Heading 9031, HTSUS, provides for "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . ." There is no dispute that the subject GMC satisfies this description. It is a machine used to measure gears. Accordingly, the GMC satisfies the terms of heading 9031, HTSUS, and is properly classifiable therein. Subheading 9031.40.00, HTSUS, provides for other optical measuring and checking instruments and appliances. The GMC was initially classified within this subheading based on the conclusion that the linear and angular optical elements were used as part of the measuring system. The terms "optical appliances" and "optical instruments" refer only to those devices which incorporate one or more optical elements, but do not include any devices in which the incorporated optical element or elements are solely for viewing a scale or some other subsidiary purpose. Chapter 90, Additional U.S. Note 3. Upon further examination, we find that the subject optical elements are used for a subsidiary purpose. They do not perform any measuring themselves but are used merely to set the location of the measuring slide of the GMC. Therefore, the GMC is not properly classifiable within subheading 9031.40.00, HTSUS. Subheading 9031.80.00, HTSUS, provides for other measuring or checking instruments, appliances and machines. The protestant contends that the GMC satisfies this description. As stated previously, there is no dispute that the GMC satisfies the terms of heading 9031, HTSUS. It is a machine used for measuring gears and it is also not provided for within any other subheading of this heading. Accordingly, the GMC satisfies the terms of subheading 9031.80.00, HTSUS, and is properly classifiable therein. HOLDING: The Gear Measuring Center is properly classifiable within subheading 9031.80.00, HTSUS, which provides for "other instruments, appliances and machines". You should grant the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest. Sincerely, John Durant, Director Commercial Rulings Division