CLA-2 OT: RR: CTF: TCM H014565 RM
Mr. Ross Lappin
Vice President, Manufacturing
Pacific Laser Systems
2550 Kerner Boulevard
San Rafael, California 94901
RE: Request for reconsideration of New York Ruling N009766, dated April 26, 2007;
Classification of Laser Levels.
Dear Mr. Lappin:
This letter is in response to your request of June 11, 2007 for reconsideration of New York Ruling Letter (NY) N009766. In that ruling, U.S. Customs and Border Protection (CBP) determined that the subject laser levels were classified under subheading 9031.49.90, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N009766 and found it to be correct.
FACTS:
The subject articles are self-leveling laser alignment tools imported from China. The principal use of these tools is to establish a level reference plane against which measurement can be performed. The product line consists of styles PLS2, PLS3 and PLS 180, which are referred to as “pocket” laser tools because they fit inside a small pouch and can be attached to a tool belt, and PLS 5, HVR 500, and HVR 100, which are hand-held tools that are too large for a tool belt.
According to the description provided by the importer, each of the tools utilizes one or more 635 nanometer laser diodes in their operation. The collimated beam from the diode is directed through various mirrors, splitters, cones, etc., to project a reference plane of energy in the horizontal plane (level) or vertical plane (self levels to dead vertical) with a line or spot. The two HVR products are standard self-leveling rotators. They project a level spot that is rotated creating a visual level laser line. All of these tools are equipped with a tripod mount insert.
ISSUE:
Are the laser levels classifiable under subheading 9031.49.90, 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" or under subheading 9015.30.40, HTSUS, as “surveying instruments (including photogrammetrical surveying)…:[l]evels: [e]lectrical?”
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
* * *
Other optical instruments and appliances:
* * *
9031.49 Other:
Other…
9015 Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof:
* * *
Levels:
9015.30.40 Electrical…
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, 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 Fed. Reg. 35127, 35128 (August 23, 1989).
At issue is whether the subject laser levels are identifiable as electrical “surveying instruments” as understood by heading 9015, HTSUS. The Court of International Trade (CIT) has adopted broad lexicographic definitions of the word “survey” and “surveying instrument” in the past. See Gehrig, Hoban & Co., Inc., v. United States, 61 Cust. Ct. 344, 293 F. Supp. 433, 439 (Cust. Ct. 1968); see also Schlumberger Well Surveying Corp. v. United States, 54 C.C.P.A. 37, 41 (1967) (holding that cartridges designed to determine the dip of subsurface formations for oil exploration are surveying devices); R.W. Smith v. United States, 41 Cust. Ct. 78, 81-82 (1958) (holding that deviation recorders and parts used to measure the angle and the direction from the vertical of an oil well hole are surveying devices); Heli-Support, Inc. v. United States, 26 CIT 352 (2002) (holding that the plaintiff’s interpretation of heading 9015, HTSUS, to include only instruments “used in the practice and science of surveying by a surveyor” was incorrect).
Most recently, in Agatec Corp., v. United States, Slip Op. 2007-92, dated June 6, 2007, a case also dealing with laser levels, the CIT drew from three dictionary definitions of the terms “survey” and “surveying” to interpret heading 9015, HTSUS. “Surveying”, according to the Columbia Encyclopedia (2d ed. 1950), is defined as "the science of finding the relative position on or near the earth's surface. Boundaries, areas, elevations, construction lines, and geographical or artificial features are determined by the measurement of horizontal and vertical distances and angles and by computations based in part on the principles of geometry and trigonometry." Encyclopedia Americana (1953) defines "surveying" as “the science of determining the positions of points on the earth's surface for the purpose of making there from a graphic representation of the area. By the term earth's surface is meant all of the earth that can be explored -- the bottoms of seas and rivers, and the interior of mines, as well as the more accessible portions. It includes the measurement of distances and angles and the determination of elevations.” Finally, Webster's Third New International Dictionary of the English Language (1981) ("Webster's") defines “surveying” as:
“1. Survey: . . . 2: to determine and delineate the form, extent, and position of (as a tract of land, a coast, or a harbor) by taking linear and angular measurements and by applying the principles of geometry and trigonometry . . . . 2. Survey: . . . 3a: the process of surveying an area of land or water: the operation of finding and delineating the contour, dimensions, and position of any part of the earth's surface whether land or water (a topographic and hydrographic, of a locality) . . . .
In Agatec, the CIT found that the similar electrical laser levels were not “surveying instruments” and therefore not classified under heading 9015, HTSUS. Principally, the Court noted that all three dictionary definitions invoked “the earth’s surface” as a benchmark for the surveying measurements, whereas the laser levels being considered “operated chiefly in a construction environment and [were] not principally measuring positions relative to the earth’s surface.” The CIT considered Webster’s alternative definition of “survey” -- which does not mention the earth’s surface but requires instead “the taking of linear and angular measurements and the application of geometric and trigonometric principles” – and found the laser levels to be equally deficient. The laser levels in that case were limited to measurement in one dimension and no evidence was produced to show how geometric or trigonometric principles may be applied to the tool’s measurements. Furthermore, the CIT found the laser levels to be incapable of spatial measurement (they could not measure distance without the help of a mounted receiver device), as required by all three definitions.
The levels under consideration in this case are similar in design and function to those described in Agatec. First, like the laser levels in Agatec, the levels in question operate chiefly in a construction environment and are not principally measuring positions relative to the earth’s surface. The laser levels’ instruction manuals and promotional catalogue clearly state that the levels are designed for use by construction contractors for indoor and outdoor job sites. You listed several applications for the tools in your request for reconsideration letter, none of them dealing with measuring the earth’s surface. Second, the laser levels are incapable of spatial measurement, as required by all the aforementioned dictionary definitions of “survey”; the tools are limited to projecting level reference planes (i.e., spots or lines). Third, like the level lasers in Agatec, the tools in question are limited to one-dimensional measurement and cannot measure angles. Moreover, you did not address how geometric or trigonometric principles may be applied to the data obtained from the laser levels’ measurements to determine and delineate the position of objects. Thus, the common dictionary meanings prevent a classification of the laser levels under heading 9015, HTSUS.
While it is true that the ENs to heading 9015, HTSUS, explicitly include instruments used “in determining heights above or below some horizontal reference level,” those same ENs conclude with the following limitation: “[t]his heading does not cover...[l]evels (air bubble type, etc) used in building or constructional work (e.g., by masons, carpenters or mechanics), and plumb-lines (heading 90.31).” Thus, as noted by the CIT in Agatec, the ENs “set up a mutually exclusive set of categories: (1) instruments used in determining heights above or below a horizontal reference level, and (2) instruments that are levels used in building or constructional work.” Accordingly, the ENs, while not binding or dispositive, support the conclusion that the laser levels are not classifiable under heading 9015, HTSUS.
We now turn to CBP’s contention that the laser levels are classifiable under heading 9031, HTSUS, which includes “[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter…” In Agatec, the CIT explained that “checking” is the present participle of “check,” which Webster’s defines as “to inspect and ascertain the condition of, esp. in order to determine if the condition is satisfactory” or “to investigate and ensure accuracy, authenticity, reliability, safety, or satisfactory performance of.” Further, "measuring,” is the present participle of "measure," which Webster's defines as "to lay off, mark, or fix (a specified distance or extent) by making measurements" or "to appraise in comparison with something taken as a criterion." The laser levels in this case are optical instruments that aid in leveling, alignment, plumbing, and squaring for building and construction projects. In addition, they can project a vertical line. These functionalities are consistent with Webster's definition of measuring and checking.
Moreover, the EN to subheading 9031.49, HTSUS, provides that “[t]his subheading covers not only instruments and appliances which provide a direct aid or enhancement to human vision, but also other instruments and apparatus which function through the use of optical elements or processes.” The goods in question use visible laser beams to aid human sight when leveling. They are therefore classifiable under heading 9031, HTSUS.
HOLDING:
The subject laser levels are classified under subheading 9031.49.90, HTSUS, which provides for: “[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: [o]ther optical instruments and appliances: [o]ther: [o]ther.” The general, column one rate of duty is 3.5 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/hts/tata/.
EFFECT ON OTHER RULINGS:
NY N009766, dated April 26, 2007 is hereby affirmed. NY N004894, dated January 23, 2007 and NY 818367, dated January 31, 1996, and any other ruling inconsistent with Agatec Corp v. United States, CIT, Slip Op. 07-92, have been revoked by operation of law.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division