CLA-2 OT:RR:CTF:TCM H245890 ALS
Port Director
U.S. Customs and Border Protection
5600 Pearl Street
Rosemont, Illinois 60018
RE: Internal Advice; Tariff Classification of the Galion Lidar Wind Measurement Device
Dear Port Director:
This letter is in reply to your request for internal advice of August 6, 2013, initiated on behalf of SgurrEnergy, Inc., regarding “the classification of the Galion LiDAR [sic] device” under the Harmonized Tariff Schedule of the United States (HTSUS). Our decision is set forth below.
FACTS:
The Galion Lidar (Lidar is an apparent abbreviation of “Light Detection and Ranging”) device uses a pulsed laser for wind speed and direction measurement in wind power applications. It operates by emitting a pulsed laser beam and measuring the Doppler shift of the light back scattered by microscopic airborne particulates carried by the wind. This produces a reading of the wind direction in the line of sight. The Galion Lidar can capture the following wind data: speed, direction, flow indication, turbulence, shear and veer.
SgurrEnergy describes the Galion Lidar (“Light Detection and Ranging”) device’s function as such: “Galion is designed to capture wind flow data over a large area... The main function of the Galion is air flow visualisation. This can be performed in both the horizontal plane and vertical plane... Galion does not provide data relating to purely wind speed or wind direction... it gives comparative information, for example; the flow of wind is faster at height X than height Y, but not [height] Z... It does not only provide absolute values in one location... but acquires comparative and relative evaluations and flow visualisations over wide areas, [kilometers] in scale.”
CBP issued a Notice of Action to SgurrEnergy on June 14, 2012, in which it notified SgurrEnergy that the tariff classification for the Galion Lidar, which SgurrEnergy had entered under HTSUS subheading 9026.80.2000 on March 26, 2012, was being changed to HTSUS subheading 9015.80.2000, which in 2012 provided for “Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof: Other instruments and appliances: Optical instruments and appliances. . .” In doing so, CBP determined that the Galion Lidar is similar in function to the WINDCUBE™ Lidar remote sensor that CBP ruled to be classified under subheading 9015.80.2000 in CBP Ruling NY N072895 (September 15, 2009).
ISSUE:
Is the Galion Lidar device, as described above, properly classified under HTSUS heading 9026, which provides for “Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof”, or under HTSUS heading 9015, which provides for “Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof”?
LAW AND ANALYSIS:
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order.
The following headings and subheadings of the HTSUS are under consideration in this case:
9015 Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof:
9015.80 Other instruments and appliances:
9015.80.20 Optical instruments and appliances. . . . . . . . . . . . .
9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof:
9026.80 Other instruments and apparatus:
9026.80.20 00 Electrical. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
* * * * * * * * * *
SgurrEnergy contends that heading 9026 is the more appropriate HTSUS provision for the Galion Lidar device than heading 9015 because of its “ability to capture air flow, which is due primarily to its scanning capability, and enhanced by its long range ([kilometers] instead of [meters]), neither of which the Windcube possesses.” SgurrEnergy further argues that “[b]y contrast [to the Windcube ruled upon in N07895,] the Galion can provide output data in a variety of ways depending on the software used”, while the Windcube is restricted to providing data “in much the same way as a conventional weather mast.”
SgurrEnergy further states that the Galion Lidar device is used to analyze the effect of wake turbulence created by aircraft at takeoff, to visualize wind flow in the wakes of turbines, and “provides access to a much broader range of relevant categories of wind data” than conventional weather masts.
The plain reading of heading 9026 clearly states that instruments of heading 9015 are excluded from classification under heading 9026. Therefore, we must first determine if the Galion Lidar device is an instrument of heading 9015. Among the various categories of instruments and appliances specifically delineated in heading 9015, the Galian Lidar is best defined as a meteorological instrument. The terms “meteorological” or “meteorology” are not defined in either the HTSUS or its legislative history. The meaning of a tariff term, a matter of statutory construction, presents a question of law. Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir. 1998).
When, as in this case, a tariff term is not defined in either the HTSUS or its legislative history, "the term's correct meaning is its common meaning." Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod at 1576.
“Meteorology” is defined as “a science that deals with the atmosphere and its phenomena and especially with weather and weather forecasting”, “the science dealing with the atmosphere and its phenomena, including weather and climate”, and “the study of the earth's atmosphere, [especially] of weather-forming processes and weather forecasting.” See http://www.merriam-webster.com/dictionary/meteorology (2016); http://www.dictionary.com/browse/meteorological?s=t (2016); http://www.thefreedictionary.com/meteorology (2016). “Meteorological” is generally defined as “pertaining to meteorology or to phenomena of the atmosphere or weather.” See, e.g., http://www.dictionary.com/browse/meteorological?s=t (2016). Wind, of course, is the natural movement of air, which of course is itself a natural element. See, e.g., http://www.hometrainingtools.com/a/four-elements (2016).
We note at this point that in understanding the language of the HTSUS, the Explanatory Notes of the Harmonized Commodity Description and Coding System (“ENs”), which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs for heading 9015 note that the group of meteorological instruments to be classified under heading 9015 includes “Wind direction indicators” and “Anemometers.” Anemometers are described as “meteorological instruments for measuring wind speed.”
There is no dispute that the Galion Libar measures wind. Upon consideration of SqurrEnergy’s central argument, that the Galion Libar is distinguished from the Windcube in N072895 (and presumably other “conventional weather mast[s]”) in that the Galion performs more, and more advanced, functions than do conventional weather masts, we find that such advanced functions do not fundamentally change its basic functions and use. The complexity with which the Galion Libar device measures wind does not change the fact that it is a device, in function and use, for measuring wind. Thus, it is in fact a wind direction indicator and an anemometer as those terms are used in EN 90.15. Consequently, the Galion Libar is an instrument that is classifiable under heading 9015.
As an instrument of heading 9015, the Galion Libar is excluded from classification under heading 9026. Accordingly, pursuant to GRI 1, the Galion Libar is properly classified under HTSUS heading 9015. Specifically, it is classified under HTSUS subheading 9015.80.20, which provides for “Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof: Other instruments and appliances; Optical instruments and appliances…”
HOLDING:
The subject Galion Libar device is properly classified, by virtue of GRI 1, under heading 9015, HTSUS. Specifically, it is classified under HTSUS subheading 9015.80.20, which provides for “Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof: Other instruments and appliances; Optical instruments and appliances…” The general column one rate of duty, for merchandise classified in this subheading is 2.8%.
Duty rates are provided for your convenience and 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.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division