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HQ 967142




September 17, 2004

CLA-2-RR:CR:GC 967142 IOR

CATEGORY: CLASSIFICATION

Tariff No.: 9015.40.80

Port Director
Customs and Border Protection
610 S Canal St.
Chicago, IL 60607
Attn: Emily Gross, S.I.S.

RE: Protest AFR No. 3901-04-100443; airborne digital sensor system

Dear Port Director:

This is our decision on the application for further review (AFR) of protest no. 3901-04-100443, filed against your classification of the ADS40, an airborne digital sensor system, under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise was entered on April 3, 2003. The entry was liquidated on January 9, 2004, and this protest and AFR was timely filed on March 12, 2004.

FACTS:

The ADS40 is an airborne digital sensor system, designed for aerial surveying and mapping applications to replace the conventional film camera and offer additional capability and accuracy and eliminate the need for chemical processing and digitizing. The literature provided describes the ADS40 as “photogrammetric accuracy and remote sensing insight combined.” The protestant describes the ADS40 as follows:

The output of the conventional film camera is typically chemically processed, then scanned to produce a digitized image that is used by digital photogrammetry software for aerial surveying and mapping. The output of the ADS40 is a high quality digital picture, already in the digital form for viewing and for immediate use for the same aerial surveying and mapping purposes. The ADS40 is a digital aerial camera for the purpose of aerial surveying and should be classified accordingly.

Nothing in the literature provided with the ADS40 refers to it being a camera. The ADS40 contains three CCD (charge-coupled device) line scanner digital linear arrays. There is no film-based camera incorporated in the ADS40. The functionality in the accompanying literature is described as “end-to-end digital dataflow” and “direct digital workflow” as opposed to “film-based workflow.” The accompanying literature specifically distinguishes the ADS40’s ability to capture three different views (forwards, nadir and backwards) simultaneously, from the capturing of overlapping images with a conventional film camera.

According to the literature submitted, the ADS40 consists of the following components:

SH40 Sensor Housing which contains and protects the linear arrays; DO64 Digital Optics which is the lens;
CU40 Control Unit which is the personal computer running the operating system, and has a fiber optics link to the SH40, and includes a Position and Orientation System (POS), and a Global Positioning System (GPS); MM40 Mass Memory, a removable array of high performance hard disks which receives the data from the SH40; OI40 Operator Interface, which is a graphical user interface; and Flight & Sensor Control Management System (FCMS) software which runs the ADS40 system.

All of the foregoing components are installed in an aircraft for the flight. After the flight, the MM40 is removed from the CU40 and connected to a personal computer workstation for ground processing. The POS and image data are downloaded from the MM40, and that data is then rectified using the position and attitude data for the sensor supplied by the POS, using additional software. The rectification process resolves any discrepancies in the advance between lines caused by variations in the forward motion of the aircraft. Thereafter the data passes to conventional digital photogrammetric processes. The flowchart of the processing in the literature shows that the processing can result in digital terrain models, orthophotos, mapping, revision, visualization image analysis and classification.

ISSUE:

Whether the airborne digital sensor system is classified as a photographic camera in heading 9006, HTSUS, or as surveying (including photogrammetrical surveying) instruments and appliances in heading 9015, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 2 through 6 may then be applied in order.

The subheadings under consideration are as follows:

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

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

Heading 9006, HTSUS, does not apply because the terms of the heading refer to “photographic” (i.e., chemical process) cameras, and not digital cameras. Moreover, note 1(h) to Chapter 90, HTSUS, provides that the chapter does not cover digital cameras. The ADS40 is a digital instrument, as is clear from its name, an airborne digital sensor system, and the description given by the protestant in the protest (output is a digital picture). Thus, if it were a camera, it would be a digital camera, and precluded from classification in Chapter 90, HTSUS, or heading 9006, HTSUS.

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 and Border Protection (“CBP”) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The EN General note (I) on General Content and Arrangement of Chapter 90, states that the Chapter includes “in particular” instruments and apparatus designed for certain specifically defined uses, giving surveying as an example. Heading 9015, HTSUS, includes “photogrammetrical surveying” instruments and appliances. The HTSUS does not define the terms "surveying” or “photogrammetry,” however EN 90.15 describes “Photogrammetrical Instruments and Appliances” as follows:

These are mainly used for plotting topographic, archaeologic, etc., maps, but they are also used for other purposes (e.g., study of tides, ground-swells, etc.). The maps, etc., are plotted from photographs or digital images taken from two different viewpoints a known distance apart, which must then be “restituted” (to obtain accurate information in respect of the shape, size and co-ordinates of objects in the image or photograph).

The terms “photogrammetry” and “surveying” themselves are not specifically defined.

A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meanings, which are presumed to be the same. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F. 2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F. 2d 1268 (1982).

“Surveying” is defined as “[t]he measurement of dimensional relationships, as of horizontal distances, elevations, directions and angles, on the earth’s surface esp. for use in locating property boundaries, construction layout, and mapmaking.” American Heritage Dictionary 1224 (2d College ed. 1982). “Photogrammetry” is defined as “1.[t]he process of making maps or scale drawings by aerial or other photography. 2. [t]he process of making precise measurements by the use of photography.” Id. at 933. The website of the Aerial Archive, http://www.univie.ac.at/Luftbildarchiv/index.htm , (the Aerial Archive is located at the Institute for Prehistory and Protohistory of the University of Vienna) provides an introduction to photogrammetry, and describes it as the technique of measuring objects (2D or 3D) from photographs or imagery stored electronically on tape or disk taken by video or CCD cameras. According to the introduction, the results of photogrammetry can be coordinates of the required object-points, topographical and thematical maps, and rectified photographs (orthophoto). According to the Aerial Archive website, the most important feature of photogrammetry is that the objects are measured “without being touched”, and another term for the process is “remote sensing.” The term ”remote sensing” is stated to have been originally confined to work with aerial photographs and satellite images. Another website, http://www.digitalhistory.ca/photogrammetry.htm , describes the digital photogrammetry process, and describes the first step in the process as a “photographic survey.”

GRI 2(a) in part extends the terms of a heading to include incomplete or unfinished articles provided that, at importation, they have the essential character of the complete or finished article. Section XVI, Note 4, HTSUS, covers machines consisting of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapters 84 or 85. The whole, in such cases, is classified in the heading appropriate to that function. Chapter 90, Note 3, HTSUS, applies Note 4 to Section XVI, to goods of Chapter 90. Section XVI, Note 4, HTSUS, is the authority under GRI 1 for classifying a series of machines or components in a 4-digit heading describing a clearly defined function performed by the goods. Given the relationship between GRI 1 and GRI 2(a) in determining the scope of the headings, GRI 2(a) may also be applied to determine whether under GRI 1 a series of machines or components may qualify for classification under Section XVI, Note 4, even if imported incomplete or unfinished.

The ADS40, imported without the separate personal computer and software for ground processing, constitutes an incomplete or unfinished functional unit, with the imported components imparting to the whole the essential character of a good of heading 9015, because the function of the ADS40 is to provide the precise image and POS data on which the photogrammetrical surveying is based. See HQ 965638, dated July 16, 2002, and related cases. The image provided by the ADS40 is specifically suited for use in photogrammetry.

We find that the components of the ADS40 are intended to contribute together to the clearly defined function of photogrammetrical surveying by means of an aerial digital survey which is used for obtaining the end results of mapping, digital terrain models, orthophotos, etc. Consistent with the EN General Note (I) on General Content and Arrangement of Chapter 90, the ADS40 is designed for the specifically defined use of photogrammetry given the specialized images obtained combined with GPS and POS data, which are used in the processing of the image data. Therefore, by application of GRI 2(a) and Section XVI, Note 4, HTSUS, as applied by Chapter 90, Note 3, HTSUS, we find that the ADS40 is a photogrammetrical surveying instrument and appliance classifiable in heading 9015, HTSUS.

HOLDING:

By application of GRI 2(a) and Section XVI, Note 4, HTSUS, as applied by Chapter 90, Note 3, HTSUS, the ADS40 is provided for in heading 9015, HTSUS. It is classified in subheading 9015.40.8000, HTSUSA, as “Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof: Photogrammetrical surveying instruments and appliances: Other” with a column one, general duty rate of 3%. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

The protest should be denied. In accordance with the Protest/Petition Processing Handbook (CIS HB 3500-08, June 2002, pp. 18 and 21), you are to mail this decision, together with the CBP 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, Director

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