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HQ 966528

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February 26, 2004

CLA-2 RR:CR:GC 966528 TPB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.49.40

Port Director
U.S. Customs Service
4341 International Parkway
Suite 600
Atlanta, GA 30354

RE: Leica Laser Tracker; Measuring and Checking Equipment; Surveying Instruments; Protest 1704-02-100428.

Dear Port Director:

This is our decision on Protest No. 1704-02-100428, filed against your classification of certain laser tracking systems under the Harmonized Tariff Schedule of the United States (“HTSUS”), imported by Leica Geosystems, Inc. (“Leica”/”Protestant”). The protest was filed on November 14, 2002 with entries liquidated between April 26, 2002 and July 11, 2003.

The protest is timely filed with respect to entries filed between August 16, 2002 and November 14, 2002. The protest is not timely with respect to entries filed prior to August 16, 2002 and entries filed after November 14, 2002.

FACTS:

The merchandise at issue consists of the Leica 3-D laser interferometer system (LT500/LTD500). The Leica 3-D system is called the laser tracker. According to the protestant, the Leica system is a portable coordinate measuring machine for small and large objects used in various applications, including the measurement of mold, patterns or models; inspection of tooling jigs; recording of historical structures or archeological sites; recording of crime or accident scenes; rapid measurements in dangerous environments such as radioactive environments; measurements of large structures for prediction of fit; in-process checks for piping and machine shop drawings; dimensional verification for quality inspection; and ship checks for damage or planned alterations. Other applications include robot calibration and surface metrology or antennas, turbine blades, and other complex shapes. All entries were liquidated under subheading 9031.49.90, HTSUS, which provides for other optical measuring or checking instruments

ISSUE:

Is the merchandise at issue classifiable under heading 9015, HTSUS, as surveying instruments; or under heading 9031, HTSUS, which provides for other measuring or checking instruments?

LAW AND ANALYSIS:

I. Timeliness

Under 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1), a protest shall be filed with Customs and Border Protection within 90 days after but not before the notice of liquidation. The entries at issue were liquidated between April 26, 2002 and July 11, 2003. The protest was filed on November 14, 2002. Accordingly, the protest is timely with respect to entries filed between August 16, 2002 and November 14, 2002. The protest is not timely with respect to entries filed prior to August 16, 2002, and entries filed after November 14, 2002.

II. Classification

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) in accordance with the General Rules of Interpretation (“GRI”s). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 2(a) states in part that incomplete or unfinished articles are to be classified as complete or finished if, as imported, they have the essential character of the complete or finished article. GRI 6 permits the comparison of same-level subheadings within the same heading, in part by application of Rules 1 through 5, applied by appropriate substitution of terms.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”s) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

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:

9015.20 Theodolites and tachymeters (tacheometers)

9015.20.40 Electrical

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:

Coordinate-measuring machines

9031.49.90 Other

The Protestant claims that the laser tracking system is properly classified under heading 9015, HTSUS, which provides for surveying equipment, specifically as a theodolite (tachymeter), electrical.

According to information provided by the Protestant, the Laser Tracker is used, or can be used, for triangulation measurements and for determining the height above or below a designated horizontal reference level as required for industrial surveying.

The term “surveying” is not defined in the Harmonized Tariff Schedule or the Explanatory Notes. When 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 (1994). A court may rely upon its own understanding of terms used, and may consult standard lexicographic and scientific authorities, to determine the common meaning of a tariff term. Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789, 6 Fed. Cir. (T) 121, 125 (Fed. Cir.), cert. denied, 488 U.S. 943, 102 L. Ed. 2d 358, 109 S. Ct. 369 (1988); Trans-Atlantic Co. v. United States, 60 C.C.P.A. 100, 471 F.2d 1397, 1398 (CCPA 1973).

“Surveying” is defined as follows:
noun: a branch of applied mathematics that teaches the art of determining the area of any portion of the earth's surface, the lengths and directions of the bounding lines, and the contour of the surface and of accurately delineating the whole on paper

Merriam-Webster’s Collegiate Dictionary, 10th ed. (2001).

The McGraw-Hill Encyclopedia of Science and Technology (1994; “McGraw-Hill”) defines “surveying” as “[t]he measurement of dimensional relationships among points, lines, and physical features on or near the earth’s surface. Basically, surveying determines horizontal distances, elevation distances, directions, and angles Surveying is typically used to obtain topographic information for mapping and charting.”

The court has also adopted several definitions of “survey,” “surveying” and “surveying instruments.” In Heli-Support, Inc. v. United States, 2002 Ct. Intl. Trade LEXIS 29 (CIT , 2002), the court observed:

Surveying devices are broadly defined to include instruments of modern technology that carry out special types of surveying, beyond mere surface examinations. See Gehrig, Hoban & Co., Inc., v. United States, 61 Cust. Ct. 344, 293 F. Supp. 433, 439 (Cust. Ct. 1968); see also Schlumberger Well Surveying Corp. v. United States, 54 C.C.P.A. 37, 41 (1967) (holding that cartridges designed to determine the dip of subsurface formations for oil exploration are surveying devices); R.W. Smith v. United States, 41 Cust. Ct. 78, 81-82 (1958) (holding that deviation recorders and parts used to measure the angle and the direction from the vertical of an oil well hole are surveying devices).

These cases have adopted broad lexicographic definitions of the word "survey" and "surveying instrument." For example, the court in R.W. Smith referred to the definition of "surveying" in Columbia Encyclopedia (2d ed. 1950), stating:
surveying, the science of finding the relative position on or near the earth's surface. Boundaries, areas, elevations, construction lines, and geographical or artificial features are determined by the measurement of horizontal and vertical distances and angles and by computations based in part on the principles of geometry and trigonometry. *** Branches of surveying are named according to the purpose of surveys, e.g., topographic surveying, used to determine relief (see CONTOUR), route surveying, mine surveying, construction surveying, or according to the method used, e.g. transit surveying, plane-table surveying, photogrammetic surveying (securing data by photographs). Surveys based on photographs are especially useful in rugged or inaccessible country and for reconnaissance surveys for construction, mapping, or military purposes.

R.W. Smith at 1921.

R.W. Smith also referred to the definition of "surveying" in the Encyclopedia Americana, Volume 26 (1953):

SURVEYING, the science of determining the positions of points on the earth's surface for the purpose of making therefrom a graphic representation of the area. By the term earth's surface is meant all of the earth that can be explored--the bottoms of seas and rivers, and the interior of mines, as well as the more accessible portions. It includes the measurement of distances and angles and the determination of elevations.

R.W. Smith at 91.

In addition, Webster's Third New International Dictionary of the English Language (1981) defines "survey" as follows:

1- Survey: 1a: to look over or examine with reference to condition, situation, or value: examine and ascertain the state of: Appraise, Estimate, Evaluate...2: to determine and delineate the form, extent, and position of (as a tract of land, a coast, or a harbor) by taking linear and angular measurements and by applying the principles of geometry and trigonometry 3a: to view from or as if from a high place or a commanding position: take an inclusive or overall view of; consider or study comprehensively: examine the whole extent

2- Survey: ...3a: the process of surveying an area of land or water: the operation of finding and delineating the contour, dimensions, and position of any part of the earth's surface whether land or water (a topographic and hydrographic, of a locality) b: a measured plan, a description of a portion of an area or of a road or line through an area obtained by surveying...

Heli-Support, Inc., pg. 7-10.

The Protestant argues that the Laser Tracker is used for industrial surveying. In its submission, it provides the following definition for industrial surveying:

Industrial surveying concerns dimensional and position control, particularly in connection with the development of complex industrial installations on land and offshore. The main objective of industrial surveying is to construct, assemble, and align a work piece or component, as specified by the relevant drawings.

However, examination of the literature indicates that the Laser Tracker is not primarily used for surveying. Descriptive material provided with the protest indicates that the Leica Laser Tracking System is a portable coordinate measuring machine for small and large objects. The literature also states that Laser Trackers are used for high accuracy assembly and inspection of product lines in aerospace, automotive and other industries. They allow the measurement of small and large objects such as airplanes with up to micron accuracy. Laser Trackers are employed by industry companies and organizations worldwide, including NASA, Boeing, NIST, DaimlerChrysler Aerospace Airbus, PICO, etc.

This indicates to us that although the Leica Laser Tracker may be used for some type of surveying as it is understood, it also performs industrial measurement.

Leica provided a definition for industrial measurement along with its submission:

Industrial Measurement (IM) is the application of surveying procedures and technology for dimensional measurement and analysis. The purpose of IM is to assist in inspecting, checking, adjusting, assembling, installation and maintenance of 3D components, workpieces, entire machines or structures, with high accuracy (sub-millimetre and often 0.01 mm) and according to design drawings and specifications. Areas of application are typically in industrial situations such as aircraft, aerospace, automobile, shipbuilding, pulp and paper, oil, gas, casting, steel, sheet metal production, plant fabrication and maintenance and mechanical engineering industries.

As indicated by the above definition, IM employs surveying procedures and technology for dimensional measurement and analysis. Although the Laser Tracker does use geometric and trigonometric applications to measure angles at a distance, not all applications are for surveying.

Thus, the merchandise appears to have two competing headings: heading 9015, HTSUS, which provides for surveying instruments, and heading 9031, HTSUS, which provides for other measuring and checking devices.

The ENs to heading 9031, HTSUS, state that:

[T]his heading covers measuring and checking instruments, appliances and machines, whether or not optical. It should, however, be noted that this group does not include any instruments, apparatus, etc., falling in headings 90.01 to 90.12 or 90.15 to 90.30; in particular, the following are therefore excluded:

Surveying, etc., instruments and appliances of heading 90.15.

As stated supra, although not legally binding, the ENs constitute the official interpretation of the Harmonized System at the international level and are useful in ascertaining the classification of merchandise under the HTSUS. Therefore, it is necessary to determine whether or not the merchandise is classifiable under heading 9015, HTSUS. If it is, then heading 9031, HTSUS, would be excluded.

Heading 9015, HTSUS, is a use provision heading. Additional U.S. Rule of Interpretation 1(a) reads as follows:

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the importing goods belong, and the controlling use it the principal use;

"Principal use" is defined as the use "which exceeds any other single use.” Conversion of the Tariff Schedules of the United States Annotated Into the Nomenclature Structure of the Harmonized System: Submitting Report at 34-35 (USITC Pub. No. 1400)(June 1983).

In determining the class or kind of goods to which the merchandise belongs, the courts have provided us with guidance. All pertinent factors must be examined. These factors may include (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of sale (e.g. the manner in which the merchandise is advertised and displayed); and (5) the usage of the merchandise. Lenox Collections v. United States, 20 C.I.T. 194 (CIT , 1996).

(A) General Physical Characteristics

With regards to its general physical characteristics, Leica has provided information that indicates that Laser Trackers are similar in many ways to Total Stations, which Customs has previously classified under heading 9015, HTSUS. HQ 083191, dated August 7, 1989. Both use vertical and horizontal encoders to measure angles; both use distance measuring devices to measure spatial distances; both contain motors for aiming: the Total Station has motors which can be controlled either by software for automatically aiming or by moving screws for manually aiming, while the Laser Tracker has motors which are controlled by software; the Total Station uses a telescope that an operator looks through for aiming to a measurement point while the Laser Tracker employs a digital camera which creates a digital picture that the operator views on a computer screen for aiming to a measurement point; the Total Station can measure with or without the need for reflectors or reflecting tape, while the Laser Tracker measures to reflectors only.

Thus, when comparing the general physical characteristics of Laser Trackers and Total Stations, they appear to be quite similar. We note, however, that Leica’s comparison was only with a device of heading 9015, HTSUS, and not of an optical measuring and checking device of heading 9031, HTSUS.

(B) Expectation of the Ultimate Purchaser; Environment of Sale; Usage of the Merchandise

According to the literature provided by Leica, the Laser Tracker is a portable coordinate measuring machine for small and large objects. The literature also states that Laser Trackers are used for high accuracy assembly and inspection of product lines in aerospace, automotive and other industries. They allow the measurement of small and large objects such as airplanes with up to micron accuracy. Laser Trackers are employed by industry companies worldwide, including:

Aerospace
Boeing – automatic assembly of wing to body NASA – verification of space craft
British Aerospace – building tools
DaimlerChrysler Aerospace Airbus – surface inspection of components

Automotive
Volkswagon – quality assurance
PICO – assembly of production line within automotive industry Scania – car inspection

Other Industries
ABB Robotics Products
Accelerator Laboratory
Deutsche Bahn AG (Transportation)
KEK (Research)
Sulzer (Machinery)
Vertex (Communication)

We find from the above information that the manner in which the merchandise is advertised by Leica, the expectation of the ultimate purchaser and the usage of the goods all indicate that the Laser Tracker is a high-precision measurement instrument.

No information has been provided to Customs as to the channels of trade of the Laser Tracker.

Based upon the foregoing information, we do not find ample evidence to prove that the Laser Tracker falls into the class or kind of merchandise that is principally used for surveying.

As the principal use of the Laser Tracker is not as a surveying instrument, but rather that of measuring and checking, we find that the merchandise does not fall to be classified under heading 9015, HTSUS, and thus can be classified under heading 9031, HTSUS.

For the reasons stated above, we find that the Leica Laser Tracking System is classified under heading 9031, HTSUS, specifically, under subheading 9031.49.40, which provides for measuring or checking instruments not specified or included elsewhere other optical instruments and appliances other coordinate-measuring machines.

HOLDING:

For the reasons set forth in Part II of the Law and Analysis above, the Leica 3-D laser interferometer system (LT500/LTD500) is classified under subheading 9031.49.40, HTSUS, which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter: Other optical instruments and appliances: Other: Coordinate measuring machines.”

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to DENY the protest in full.

We note that there is a separate basis for denial of the protest with respect to the entries for which the protest was not timely filed (entries filed prior to August 16, 2002 and entries filed after November 14, 2002).

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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, Acting Director
Commercial Rulings Division

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See also:

• Tariff No.: 9015.20.40 - Electrical theodolites and tachymeters
• Tariff No.: 9031.49.40 - Optical coordinate-measuring machines, nesoi
• Tariff No.: 9031.49.90 - Other optical measuring or checking instruments, appliances and machines, nesoi