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HQ 966207




August 26, 2003

CLA-2 RR: CR: GC 966207 TPB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.90

Mr. Harvey Karlovac
Barnes, Richardson & Colburn
303 East Wacker Drive
Suite 1100
Chicago, IL 60601

RE: CoroSmart and CoroCams I, II, III and IV viewers and cameras; Reconsideration of HQ 965903.

Dear Mr. Karlovac:

This is in response to a letter dated January 23, 2003, filed on behalf of Specialized Camera Sales & Service, LLC (“Specialized”), requesting reconsideration of HQ 965903, dated November 19, 2002. This ruling classified electrical corona viewers and cameras imported by Specialized, the CoroSmart and CoroCams I, II, III and IV, under subheading 9013.80.90, Harmonized Tariff Schedule of the United States (“HTSUS”). We have reviewed this ruling in light of the original submission of September 4, 2002, as well as the instant submission. Consideration has also been given to additional information requested by this office and submitted by you. For the reasons set forth below, we affirm HQ 965903.

FACTS:

The products are described in HQ 965903 as follows:

The instant merchandise consists of five types of corona inspection cameras, CoroSMART and CoroCAM Models I, II, III and IV (the CoroCAM series, collectively). They are used to inspect corona discharge activities on high voltage equipment. They operate in the ultraviolet and visible light ranges.

The CoroSMART is described as the most basic corona-viewing camera in the CoroCAM series. It is a filtered ultraviolet viewer that works like a telescope by pointing the camera at the object under observation and viewing the image through the eyepiece. It has no video output. It is used for quick inspections.

The CoroCAM I is described as a filtered ultraviolet camera used for corona detection, with an eyepiece or optional liquid crystal display (LCD). It is designed for on-site inspections. It includes video output for recording the displayed images of the corona and the object viewed.

The CoroCAM II is described as being designed as a research corona detection tool to provide the engineer with real-time pictorial corona information. It is the highest sensitivity ultraviolet camera with desktop computer control for corona image grabbing and sizing of the corona volume in each image or frame of video. The CoroCAM II software database allows for capture and management of data.

The CoroCAM III is described as being designed for indoor or low-light level electrical corona on-site inspections and to extend the working hours of the CoroCAM I to include dawn and dusk. It produces a video image of the corona and the object.

The CoroCAM IV can detect and display corona discharges in the brightest daylight conditions through the use of special optics. It switches between “as seen” images and the corona images, and has a video output for recording.

The CoroSMART, the CoroCAM I, CoroCAM III and CoroCAM IV are battery-powered portable devices imported and used to locate electrical coronas by industry, electric utilities and service companies. The CoroCAM II was designed for research and development purposes.

Additionally, you stated in your letter of January 23, 2003, that the primary function of the cameras is to detect and observe corona discharges on high voltage equipment. You indicated that a corona is an electrical field, such as that typically created by high voltage equipment. When the electric-field intensity on the surface of the high voltage wires or equipment exceeds the electrical breakdown strength of the surrounding air, the nitrogen in the air becomes excited and creates nitrogen ions. This ionization process creates a discharge in the form of daylight invisible light (the strongest emissions of which are in the ultraviolet), audible noise, radio noise, vibration, deterioration of surrounding materials, generation of ozone, nitrogen oxides and nitric acid and other forms of dissipation of energy. The greater the electrical discharge, the more ionization and therefore the more ultraviolet radiation. The ultraviolet radiation takes the form of photon emissions. These emissions enter the lens of the camera and are processed by a filter. They then proceed to a detector that converts the photons into an electrical signal relative to the ultraviolet emission signal strength. The electrical signal is displayed in the camera’s viewer for the user to view this spatial representation of ultraviolet radiation signal strength.

ISSUE:

Are the electrical corona viewers and cameras classified under heading 9027, HTSUS, as instruments or apparatus for measuring or checking quantities of light, or under heading 9013, HTSUS, as other optical appliances and instruments not specified or included elsewhere in this chapter?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

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:

9027.30 Spectrometers, spectrophotometers and spectrographs using optical radiations (ultraviolet, visible, infrared):

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

9027.50.40 Electrical

You state that HQ 965903 incorrectly classifies the cameras under subheading 9013.80.90, HTSUS and that subheading 9027.30, HTSUS, correctly describes the merchandise at issue as spectrometers, spectrophotometers and spectrographs using optical radiations (ultraviolet, visible, infrared). You indicate the cameras measure optical radiation, which is the essential function of a spectrometer and that the detection of ultraviolet intensity by any of the cameras and forming an electronic image is dependant on identifying the quantity of ultraviolet radiation within a field of view, thus permitting it to be analyzed.

EN 90.27 (5) describes spectrometers as instruments used to measure the wave-lengths of emissions and absorption of spectra. Although you have indicated that the CoroCams operate in the ultraviolet region, there has been no evidence presented that would indicate to this office that the CoroCams analyze the ultraviolet wavelength spectra. The spectrometers utilize specialized components that determine the spectra emitted or absorbed by a physical or chemical sample, which the CoroCams themselves do not. For those reasons, we would not classify the CoroCams under 9027.30, HTSUS.

In the alternative, you argue that Customs has previously classified merchandise similar to the corona cameras under subheading 9027.50.40, HTSUS, which provides for instruments and apparatus for measuring or checking quantities of light using optical radiations (ultraviolet, visible, infrared), and cite to NY 856078, dated October 3, 1990, which classified a phototherapy radiometer, which measured light in the visible range of 400-480 nanometers to determine the amount of light radiation emitted by phototherapy lights. That importer’s website, www.biotekbiomedical.com, indicates that the merchandise subject to that ruling, Model X74345, is a “portable, fixed bandwidth, solid state, battery operated instrument for measuring irradiance from phototherapy lamps.” It goes on to say “[t]he readout is calibrated at Bio-Tek against a standard traceable to the National Institute of Standards (NIST). A Calibration Certificate is furnished with the meter. The radiometer should be calibrated at least once a year.” The Bio-Tek Phototherapy Radiometer Model 74345 reads power in microwatts per square centimeter (uW/cm2) and has the ability to store up to 200 test records within its memory. This device is clearly distinguishable from the merchandise at issue in HQ 965903. The merchandise in the NY ruling was a calibrated instrument which measured light and stored the results, which were later printed or downloaded to a software program. The merchandise presently at issue before us utilize ultraviolet filters to detect or observe electrical light intensity and display it in the form of images for engineers to evaluate. As stated in HQ 965903, there is no indication that the cameras perform any quantitative verification or measurement, or that there is a need for calibration against any set of standards. Thus, as concluded in HQ 965903, the cameras do not meet the terms of the heading of 9027, HTSUS.

Similarly, the rulings mentioned in your submission that you indicated classified merchandise similar to the CoroCams under subheading 9027.50.40, HTSUS can all be distinguished from the present case. NY 875965, dated July 28, 1992, involved an infrared thermal measurement unit. The Thermovision System in that ruling is described, in pertinent part, as follows:

The camera unit scans an object and detects the infrared energy generated by the object. The infrared energy is converted to an electrical signal in order to generate an image on a monitor. The image is a thermal image of the object. The measurements are displayed as different colors: a temperature gradient is displayed on the monitor, allowing the operator to evaluate and analyze the image. [Emphasis added].

HQ 951863, dated July 10, 1992, classified an optical spectrum analyzer under subheading 9027.50.40, HTSUS. The merchandise in that ruling is described, in pertinent part, thusly:

The AQ-6312B is a device which is capable of determining the existence of and measuring the energy levels of various wavelengths in a light beam. It analyzes visible light and other radiations from LEDs and LDs. This analysis is accomplished by converting the energy emitted by these LEDs and LDs into electrical signals using a monochromator. Light (visible) and other forms of energy from the LEDs or LDs are diffracted across diffraction gratings which isolate particular portions of the electromagnetic spectrum. Once isolated, the energy is converted into an electrical quantity using PIN diodes or AP diodes. The electrical quantities are then processed by a computer, which conveys data on wavelength loss, transmission characteristics and other information to the operator. [Emphasis added].

The goods in the above mentioned rulings are distinguishable from the CoroCams in that they both produced information that could be expressed quantitatively or were measured against a set standard. The Corocams, in contrast, only allow the user to see the presence of corona discharges.

The quantitative criterion mentioned in HQ 965903 is derived from Customs understanding of the term “measuring.” Neither the HTSUS or the ENs defines “measuring” or “checking.” Undefined tariff terms are construed in accordance with their common and commercial meaning. See Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 673 F2d. 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 CCPA 128, 673 F2d. 1268 (1982).

“Measuring,” the verb, is defined in Merriam-Webster’s Collegiate Dictionary, 10th ed., as “to regulate by a standard” (pg. 719). “Checking” (verb) is defined as “to compare with a source, original, or authority: verify” (id. at 194).

The function of these cameras is not within the common definitions of either “measuring” or “checking.” The way in which these cameras function is more accurately described as “detecting,” which is defined as “to discover or determine the existence, presence, or fact of” (id. at 314). This action is not within the scope of heading 9027, HTSUS.

You also cited to HQ 227054, dated December 17, 1997. The issue in that ruling was whether the importer of an optical spectrum analyzer could convert the consumption entry into a temporary importation bond. Although it was indicated in that ruling that the merchandise was classified under subheading 9027.50.40, HTSUS, there was no description given of the merchandise or analysis of the classification. Because the issue was not the classification of the merchandise, but rather the entry status, we find it is not persuasive with respect to your classification claim.

HQ 965903 cited to HQ 961289, dated March 30, 1998, as an analogous ruling. HQ 961289 classified a thermal imaging system used by firefighters to see through dense smoke under heading 9013, HTSUS. That device detected the infrared radiation emitted by objects and materials in the form of heat and utilized optical elements such as prisms and lenses to create images. You indicated that assuming the analogy between infrared energy and ultraviolet energy in the subject cameras, that the purpose of the two instruments is different. However, we find that HQ 961289 is on point in its analogy and is correctly cited as verification of classification under heading 9013, HTSUS.

HOLDING:

For the reasons stated above, the CoroSmart and CoroCams I, II, III and IV viewers and cameras are classified under subheading 9013.80.90, HTSUS, as: 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: Other devices, appliances and instruments: Other.

HQ 965903, dated November 19, 2002, is affirmed.

Sincerely,

Myles B. Harmon, Director

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