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HQ 965389





April 11, 2002

CLA-2 RR:CR:GC 965389 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.49.90

Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94111

RE: Protest 2809-01-100623; RoboVectors

Dear Port Director:

This is our decision regarding Protest 2809-01-100623, filed by TLZ, Inc. (“protestant”), concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a RoboVector.

FACTS:

The file reflects the following. The entry at issue was filed on July 19, 2000, and was liquidated on June 1, 2001. The protest was filed on August 30, 2001.

The RoboVector is stated to be an electro-mechanical pendulum-based level used in construction applications to: align pipes, piers, and posts; square foundations, walls, decks, window frames and door frames; plumb walls, posts and door frames; set drainage grades; and furnish reference points for HVAC (heat, ventilation, air conditioning), lighting, sprinkler systems and skylights. The RoboVector contains two printed circuit boards, a beam splitter and a visible laser diode which produces five self-leveling beams. It is powered by 3AA cell batteries. The device does not use traditional mechanical “spirit vials” for leveling.

The RoboVector was entered under subheading 9015.30.80, HTSUS, and the entry was liquidated under that provision. The protestant now claims that the RoboVectors are classified in subheading 9015.30.40, HTSUS.

The subject entry also involved certain goggles the classification of which is not being protested.

ISSUE:

What is the classification under the HTSUS of the RoboVector?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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.

The HTSUS provisions under consideration are as follows:

9015 Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses, rangefinders; parts and accessories thereof:

9015.30 Levels:

9015.30.40 Electrical

9015.30.80 Other

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:

9031.49.90 Other

EN 90.15 provides in pertinent part as follows:

This heading does not cover:
. . .
(b) Levels (air bubble type, etc.) used in building or constructional work (e.g., by masons, carpenters or mechanics), and plumb-lines (heading 90.31).

As stated above, the RoboVector is a type of level. “Level” is defined in pertinent part as follows in The Random House Dictionary of the English Language (unabridged ed.; 1973): “a device used for determining or adjusting something to a horizontal surface . . . Also called a surveyor’s level, an instrument for observing levels, having a sighting device, usually telescopic, and capable of being made precisely horizontal . . . “ We believe that the RoboVector meets the first definition above, i.e., “a device used for determining or adjusting something to a horizontal surface.”

We find that the RoboVector is not described in heading 9015, HTSUS. The only function described in the heading which might describe the RoboVector is “surveying.” However, the protestant has not established that the RoboVector is used for surveying or that it is a surveyor’s level. Further, there is no indication that the RoboVector is the same or similar to the class of levels goods described in EN 90.15. We find that the RoboVector is within the exclusion of EN 90.15, excerpted above. The laser diode aids the RoboVector in determining true level. Therefore, we find that the RoboVector is not described in heading 9015, HTSUS.

The exclusion directs us to heading 9031, HTSUS, which includes the following language: “ . . . not specified or included elsewhere in this chapter . . .” After a review of the other headings in Chapter 90, HTSUS, we conclude that none of these other headings describes the RoboVector. Further, the RoboVector is a measuring or checking instrument, i.e., it is described in heading 9031, HTSUS. It contains a laser which is an optical device incorporating optical elements.

Accordingly, we find that the RoboVector is described in heading 9031, HTSUS, and is classified in subheading 9031.49.90, HTSUS, as: “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: . . . Other: . . . Other.”

HOLDING:

The RoboVector is described in heading 9031, HTSUS, and is classified in subheading 9031.49.90, HTSUS, as: “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: . . . Other: . . . Other.”

Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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