CLA-2 OT:RR:CTF:TCM H266052 DSR
Area Port Director
U.S. Customs and Border Protection
Port of St. Albans
50 South Main Street
St. Albans, VT 05478
ATTN: Michael Cassin, Senior Import Specialist, Team 110
RE: Request for internal advice; Classification of ground penetrating radar systems
Dear Port Director:
This is in response to a request for internal advice dated May 27, 2015, filed by The Pike Law Firm, P.C., on behalf of IDS North America, Ltd. The internal advice request concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of ground penetrating radar systems.
FACTS:
The articles under consideration are ground penetrating radar (GPR) systems referred to as the “RIS Hi-Pave,” “RIS Hi-BrigHT,” “RIS MF Hi-Mod,” and “Aladdin.” The GPR systems employ radar to detect and measure certain subterranean objects and characteristics, or measure the characteristics of objects within structures such as bridge decks, concrete and masonry, i.e., buried pipes, underground cavities, subsurface cracks, voids and layer thickness.
The RIS Hi-Pave is a type of GPR system that is used to survey roads and pavement, to measure and detect pavement thickness, and to provide a complete assessment of other conditions such as cavities and voids. The RIS Hi-BrigHT is an array radar system that provides for the early detection of deterioration and corrosion in concrete bridge decks. The RIS MF Hi-Mod is a high performance multiuse ground penetrating radar system that is designed to scan large areas in a short period to provide an accurate, high resolution and depth penetrating three-dimensional view of subsoil. The Aladdin is described as follows:
… a highly portable dual polarized radar for examining the internal structure and features, both near the surface and at depth, within concrete and masonry. It can provide 2D and 3D images of objects in concrete such as shallow and deep rebars, voids, pipes and cables. It can also enable the inspection of concrete for thickness and integrity as well as provide 2D and 3D location of rebars and cables.
The port of St. Albans has determined that the above articles are classified in subheading 9031.80.80, HTSUS, which provides for “Measuring or checking instruments, appliances and machines, no specified or included elsewhere in this chapter: profile projectors: parts and accessories thereof: Other instruments, appliances and machines: Other … Other.”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is determined in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
Further, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of the heading. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The HTSUS provisions under consideration in this case are as follows:
8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus:
8526.10.00 Radar apparatus.
* * * *
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
* * *
9031.80 Other instruments, appliances and machines:
* * *
9031.80.80 Other.
* * * *
Section XVI, Note 1(m), HTSUS, excludes articles of Chapter 90, HTSUS, from classification in Chapters 84 and 85, HTSUS. Note 1(h) to Chapter 90 specifically excludes, in pertinent part, radar apparatus of heading 8526, HTSUS. Therefore, if the instant articles are classifiable as radar apparatus of heading 8526, HTSUS, they are excluded from consideration as articles of Chapter 90.
Heading 8526, HTSUS, provides for radar apparatus, radio navigational aid apparatus and radio remote control apparatus. EN 85.26 states, in relevant part, that heading 8526 includes:
(1) Radio navigational aid equipment (e.g., radio beacons and radio buoys, with fixed or rotating aerials; receivers, including radio compasses equipped with multiple aerials or with a directional frame aerial). It also includes global positioning system (GPS) receivers.
(2) Ship or aircraft navigational radar equipment (whether for mounting on the ship, aircraft, etc., or on land), including port radar equipment, and identification equipment placed on buoys, beacons, etc.
(3) Blind approach landing or traffic control apparatus for airports. These are very complex. Certain types combine normal radio, radar and television devices showing at the control point the position and height of aircraft in the neighbourhood, and transmitting to the aircraft both the necessary instructions for landing and the radar picture of other aircraft in the vicinity.
(4) Radar height measuring apparatus (radio altimeters).
(5) Meteorological radar for tracking storm clouds or meteorological balloons.
(6) Blind bombing equipment.
(7) Radar devices for proximity fuses of shells or bombs.
The complete fuses with their detonator fall in heading 93.06.
(8) Air raid warning radar apparatus.
(9) Range and direction finding radar apparatus for naval or anti aircraft guns.
(10) Radar transponders; …
Each of the above examples of articles in EN 85.26 utilize radar, just as the articles that are the subject of this internal advice request. The term "radar" is not specifically defined in the HTSUS. Tariff terms are construed in accordance with their common and commercial meaning. See Nippon Kogasku (USA), Inc. v. United States, 69 C.C.P.A. 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. See C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268 (1982). McGraw-Hill Encyclopedia of Science & Technology (1995) provides in pertinent part, as follows:
Radar operates by transmitting electromagnetic energy into the surroundings and detecting energy reflected by objects. If a narrow beam of this energy is transmitted by the directive antenna, the direction from which reflections come and hence the bearing of the object may be estimated. The distance to the reflecting object is estimated by measuring the period between the transmission of the radar pulse and reception of the echo…Many different kinds of radar have been developed for a wide range of purposes, but they all use electromagnetic radiation (radio waves) to detect and measure certain characteristics of objects (or targets) in their vicinity.
The Dictionary of Scientific and Technical Terms, Sixth Edition (2003), reads as follows, in relevant part:
A system (more fully primary radar) for detecting the presence of objects at a distance and determining their position or motion by transmitting short radio waves and detecting or measuring the return of these after being relayed by the object; a similar system (more fully secondary radar) in which a return signal is automatically transmitted by the target when it receives the outgoing waves.
Also, radar has been defined as “a device or system consisting usually of a synchronized radio transmitter and receiver that emits radio waves and processes their reflections for display and is used especially for detecting and locating objects (such as aircraft) or surface features (as of a planet).” www.merriam-webster.com. (visited July 6, 2018).
The subject devices employ radar to detect and measure certain subterranean objects, or characteristics of objects within structures such as bridge decks, concrete and masonry, i.e., buried pipes, underground cavities, subsurface cracks, voids and layer thickness. The subject devices squarely meet the definition of radar apparatus and are therefore classifiable in heading 8526, HTSUS. In addition, applying Note 1(h) to Chapter 90, HTSUS, and Note 1(m) to Section XVI, HTSUS, they are excluded from Chapter 90, HTSUS. We therefore find that the subject devices are classified in subheading 8526.10.00, HTSUS, which provides for “Radar apparatus, radio navigational aid apparatus and radio remote control apparatus: Radar Apparatus.”
HOLDING:
By application of GRIs 1 and 6, the RIS Hi-Pavis, RIS Hi-BrigHT, RIS MF Hi-Mod and Aladdin are classified as Radar apparatus in heading 8526. They are specifically provided for in subheading 8526.10.00, HTSUS, which provides for “Radar apparatus, radio navigational aid apparatus and radio remote control apparatus: Radar Apparatus.” The column one, general rate of duty is “Free.”
You are to mail this decision to the internal advice requester no later than sixty days from the date of the decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page 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 Tradete Facilitation Division