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HQ 966171




June 27, 2003

CLA-2 RR:CR:GC 966171 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.50.40

Port Director
U.S. Customs & Border Protection
22685 Holiday Park Drive, Suite 15
Sterling, VA. 20166

RE: Protest 5401-02-100047; Kelvin 350 III Video And Infrared Camera System

Dear Port Director:

This is our decision on Protest 5401-02-100047, filed on behalf of Polytech USA, Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the Kelvin 350 III video and infrared camera system. The entry was liquidated on August 30, 2002, and this protest was timely filed on October 10, 2002, in the form of a letter from the importer’s representative.

FACTS:

The Kelvin 350 III video and infrared camera system incorporates a ThermaCam SC3000 QWIP long-wave infrared camera and a Sony DCR-V2000 video camera in a dome housing. This camera system is intended to be mounted onto a helicopter and is used for power line inspection, oil spill detection, environmental and wildlife studies, and law enforcement activities.

The camera system is housed with a 4-axis gyroscope stabilized composite gimbal system. The gimbal system is a turret which houses the camera systems. The gimbal allows the cameras to be used with the gyroscope to keep the cameras focused on a fixed point outside the aircraft. The gimbal features a cage mode which locks the cameras in place in relation to the aircraft so that external objects appear to be moving. The gimbal also has a stove mode which is used for times such as parking, where the lenses are locked in a backwards position so they are not exposed. The gimbal provides on-screen symbology including azimuth and elevation (“AZ/EL”) of the cameras in relation to the aircraft, time, date, user information, and Global Positioning System (“GPS”) longitude and latitude.

In a teleconference on April 1, 2003, with a representative of FLIR Systems, the manufacturer of the ThermaCam SC3000 infrared camera, the Bureau of Customs and Border Protection (CBP) was informed that the Sony DCR-V2000 video camera operates as a standard video camera. However, the infrared camera not only displays and records visual color gradient imaging indicating temperature variations, but also records actual digital temperature measurements in both Celsius and Fahrenheit. The ThermaCam SC3000 infrared camera measures temperatures in four ranges: Range 1, -20C to +80C; Range 2, +10C to +150C; Range 3, +100C to +500C; and Range 4, +350C to 1500C. The accuracy of the infrared camera in +/- 1C, +/- 1 % for ranges up to 150C; and +/- 2C, +/- 2% for ranges above +150C. The thermal sensitivity of the infrared camera is 20 mK at 30C. Further, the FLIR representative informed CBP that the respective costs of the components of the Kelvin 350 III camera system are approximately $100,000 for the infrared camera, $300 for the video camera, $300 for the GPS system, and $50 for the gimbal system protective enclosure.

The articles were entered under subheading 9006.30.00, HTSUS, as photographic cameras, specially designed for aerial survey. You liquidated the entries under subheading 9013.80.90, HTSUS, as other optical appliances and instruments, not specified or included elsewhere in this chapter. The protestant asserts the correct classification of the article is under subheading 9027.50.40, HTSUS, as other electrical instruments and apparatus for measuring or checking quantities of heat sound or light, using optical radiations.

ISSUE:

Whether, under GRI 3(b), the essential character of the Kelvin 350 III Video and Infrared Camera System can be established.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, goods are to be classified 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 must then be applied.

In interpreting the headings and subheadings, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is CBP’s practice to consult the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8525 Transmission apparatus for radiotelephony, radiotelelgraphy, radiobroadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras; still image video cameras and other video camera recorders; digital cameras:

8525.30 Television cameras:

8525.30.30 Gyrostabilized television cameras

8525.30.90 Other

8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus:

Other:

8526.91.00 Radio navigational aid apparatus

8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528:

8529.90 Other:

Other parts of articles of headings 8525 and 8527, except parts of cellular telephones:

Of televisions apparatus:

8529.90.81 Other

9006 Photographic (other than cinematographic) cameras; photographic flashlight apparatus and flashbulbs other than discharg lamps of heading 8539; parts and accessories thereof:

9006.30.00 Cameras specially designed for underwater use, for aerial survey, or for medical or surgical examination of internal organs; comparison cameras for forensic or criminological purposes

9013 Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof:

9013.80 Other devices, appliances and instruments:

9013.80.90 Other

9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof:

9027.50 Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared):

9027.50.40 Electrical

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

Where goods are, prima facie, classifiable under two or more headings, each of which refers to part only of the materials, substances or components in mixed or composite goods, those headings are to be considered equally specific in relation to the goods. Such goods are to be classified according to GRI 3(b) which states, in part, that composite goods consisting of different components for which no one heading specifically describes the goods shall be classified as if consisting of the component which gives the good its essential character, insofar as this criteria is applicable. The Kelvin 350 III is a composite good incorporating an infrared camera, a video camera, a GPS unit, a gimbal housing system, and a gyroscope. In considering the individual components incorporated into the Kelvin 350 III camera system, CBP has previously found that video cameras of the type used in this article have been classified in subheading 8525.30, HTSUS. See, e.g., HQ 964973 (July 17, 2002), NY G80253 (July 31, 2000), NY D80980 (August 27, 1998). GPS units have been classified in subheading 8526.91.40, HTSUS. See, e.g., HQ 955510 (September 16, 1994), NY H83514 (July 18, 2001). Gimbal systems have been classified in subheading 8529.90.81, HTSUS. See, e.g., NY C85610 (April 6, 1998). Gyroscopes have been classified in subheading 9031.80.80, HTSUS. See, e.g., NY C81218 (November 18, 1997), NY 887565 (July 14, 1993).

Infrared cameras have been classified differently according to their use and sophistication. Basic infrared cameras which merely allow the user to view in dark or smoky conditions, or display a picture showing objects due to their different temperatures, have been classified in subheading 9013.80.90, HTSUS. See, e.g., HQ 961289 (March 30, 1998); HQ 965903 (November 19, 2002); NY I87272 (October 29, 2002). However, infrared cameras of the type used in the Kelvin 350 III camera system, which measure different levels of heat, have been classified in 9027.50.40, HTSUS. See, e.g., NY 875965 (July 28, 1992). Subheading 9027.50.40, HTSUS, requires the infrared camera to actually perform an analysis of thermal energy and measure or check quantities of heat. The ThermaCam SC3000, used in the Kelvin 350III camera system, not only presents a thermal image, but actually performs temperature measurements. The ThermaCam SC3000’s purpose is to measure temperatures to determine the scope and severity of problems in applications such as pipeline inspections, beyond what a mere thermal image could portray.

We also note that the article was entered under subheading 9006.30.00, HTSUS, as a camera specifically designed for aerial survey. However, each of the cameras in the Kelvin 350 III is a distinct unit from an individual manufacturer. Neither of the cameras is specifically designed for aerial surveying, but could be used in other ways. Therefore, the classification as entered under subheading 9006.30.00, HTSUS, is incorrect.

Under EN Rule 3(b)(VIII), the factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In the instant case, the essential character of the Kelvin 350 III camera system is imparted by the ThermaCam SC3000 infrared camera. The ThermaCam SC3000 is much more expensive than the other components, $100,000 compared to $300. The sophistication and abilities of the ThermaCam SC3000 are the reason a person would purchase the Kelvin 350 III. It is the ThermaCam which not only records and displays imaging indicating temperature variations but, more importantly, measures and analyzes the different levels of thermal energy which may indicate potential power line failure. One could purchase a system with a much less sophisticated camera for significantly less money if one did not want the abilities of the ThermaCam SC3000. The other components merely assist or complement the function of the ThermaCam SC3000. Therefore, pursuant to GRI 3(b), the essential character of the Kelvin 350 III is imparted by the ThermaCam SC3000, and the classification of the Kelvin 350 III is in subheading 9027.50.40, HTSUS, as other electrical instruments and apparatus for measuring or checking quantities of heat, sound or light using optical radiations.

HOLDING:

In accordance with GRI 3(b) and the above discussion, the Kelvin 350 III is classified in subheading 9027.50.40, HTSUS, as other electrical instruments and apparatus for measuring or checking quantities of heat, sound or light using optical radiations. This classification is consistent with NY 875965, supra.

The protest should be ALLOWED. 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 or entries in accordance with the decision must be accomplished prior to mailing 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.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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