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HQ 967398




May 10, 2005

RR:CR:GC 967398 RSD

CATEGORY: CLASSIFICATION

TARIFF NO. 8531.80.00

Area Director
U.S. Customs and Border Protection
John F. Kennedy International Airport
Building #77
Jamaica, NY 11430

RE: Protest 4701-04-100799; Intellisensor Stud Sensors

Dear Area Director:

This is in regards to Protest 4701-04-100799, filed on behalf of Stanley Works by counsel concerning the tariff classification of two stud finders, the Stud Sensor and the Pro Stud Sensor under the Harmonized Tariff Schedule of the United States (HTSUS). A telephone conference was conducted with counsel to discuss this matter. Counsel made a supplemental submission dated February 24, 2005.

FACTS:

The products that are under consideration in this protest are the "Intellisensor Stud Sensor", Item Number 77-110, and the “Intellisensor Pro Stud Sensor”, Item Number 7720, imported by Stanley Works (Stanley). The Stud Sensor and Pro Stud Sensor are devices designed to detect and to alert the user to the location of studs or joists behind walls. Both types of stud sensors detect studs by sensing changes in the density of wallboard materials. This is done through the use of an electrical current that is supplied by a nine-volt alkaline battery. To operate the stud sensor, the user places the device flat against a wall and moves it in a horizontal direction. When the stud sensor detects an increase in a wall material’s density, this means that the device has located the presence of a wall stud or joist. An electronic audio alert and a visual signal (an easy-to-read light-emitting diode) (LED) are activated when the instrument locates the presence of a wall stud or joist. By utilizing the incorporated pencil notch located at the top of the stud sensor, the subject apparatus points the user as to where to mark the stud’s and/or joist’s edge. In addition, the Pro-Stud Sensor has an auxiliary feature that assists the user in detecting live electrical wires behind a wall. The Pro-Stud Sensor then displays information indicating the general location of the detected live electrical wires on its incorporated Liquid Crystal Display. “LCD”.

The stud sensors were entered on February 14, 2004, under subheading 9031.80.80, HTSUS, which provides for non-optical measuring or checking instruments, appliances, and machines. On June 18, 2004, your office liquidated the entries of both types of stud sensors under subheading 9031.49.90, HTSUS, which provides for optical measuring or checking instruments, appliances and machines. Stanley filed a timely protest on September 15, 2004, challenging the liquidated classification of the stud sensors.

Counsel argued in its first submission in support of Stanley’s protest that the stud sensors should be classified in heading 9027, HTSUS, which provides for instruments and apparatus for physical or chemical analysis. As an alternative, counsel also suggested that the stud sensors could be classified in heading 9030, HTSUS, which provides for oscilloscopes, spectrum analyzers and other instrument and apparatus for measuring or checking electrical quantities. In its most recent submission, dated February 24, 2005, counsel did not present any further arguments to support the contention that the stud sensors are classified either in heading 9027, HTSUS, or in heading 9030, HTSUS. Instead, counsel proposed that the stud sensors could be classified in heading 8531, HTSUS, which provides for electric sound or visual signaling apparatus.

ISSUE:

Whether the Stanley Works’ Stud Sensor and Pro Stud Sensor are classified in heading 8531, HTSUS, as electric sound or visual signaling apparatus, or in heading 8543, HTSUS, as electrical machines and apparatus having individual functions, not specified or included elsewhere, or in heading 9031, HTSUS, as measuring or checking equipment?

LAW AND ANALYSIS:

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 GRIs may then be applied.

The HTSUS provisions under consideration are as follows:

8531: Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 8512 or 8530; parts thereof:

8531.20.00 Indicator panels incorporating liquid crystal devices (LCD’s) or light emitting diodes (LED’s).

8531.80.00 Other apparatus.

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:

Other machines and apparatus:

8543.89 Other:

Other:

Other:

8543.89.96 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:

9027.80 Other instruments and apparatus:

Other:

9027.80.45 Electrical.

9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof:

9030.39.00 Other.

9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:

9031.49 Other:

9031.49.90 Other.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s 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 system. Customs and Border Protection (CBP) believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Because the stud sensors were liquidated in heading 9031, HTSUS, we will first analyze whether they are classified in that heading. Heading 9031, HTSUS, provides for measuring or checking instruments, appliances and machines, not specified elsewhere in Chapter 90. In other words, devices which measure or are used for checking something are classified in heading 9031, HTSUS.

In HQ 957026, February 7, 1995, we considered the classification of pipe/cable locators, which were designed to pinpoint the exact location of underground pipes or cables. The cable/pipe locators under consideration not only detected the cables/pipes in the ground but also provided a depth measurement to pinpoint the exact location of the cable/pipe. Based on the cable/pipe locators capability in providing the exact measurement of the depth of buried cable/pipe, we ruled that they were more specifically classified under subheading 9031, HTSUS, as other measuring or checking instruments. See also NY 855192 dated August 15, 1990, in which CBP classified a product called a “Vigitizer”, a measuring instrument that was used on a hand-made model to locate points on the model and digitized those points, under heading 9031, HTSUS, as measuring or checking instruments.

In this instance, the stud sensors are used to locate or detect studs and to alert the device's user to the location of a stud behind a wall by giving off a visual and an audio signal. The stud sensors are not used to determine dimensions of anything. Thus, we conclude that they could not be considered measuring instruments. Unlike the cable/pipe finders that were the subject of HQ 957026, the stud sensors do not provide any measurements in locating the studs behind walls. Rather, they send a visual and/or audio signal when the device is placed over the spot on the wall where the stud is present.

Although the stud sensors are not measuring instruments, the stud sensors could still be classified in heading 9031, HTSUS, if they perform a checking function. However, the term "checking" is not defined in the HTSUS or the ENs. Tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’").

In United States v. Corning Glass Works, 66 CCPA 25, 586 F. 2d 822, C.A.D. 1216 (1978), the Court, quoting Webster’s Third New International Dictionary (1971), applied the following definition to a tariff provision for "measuring or checking instruments":

"Check" is defined as "to inspect and ascertain the condition of especially in order to determine that the condition is satisfactory; ... investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of; to investigate and make sure about conditions or circumstances ...." [66 CCPA at 27]

The stud sensors are not used to inspect or ascertain the condition of the walls or studs. Furthermore, there is no indication that the stud sensors investigate to insure accuracy, reliability, safety or satisfactory performance of anything. Rather, the stud sensors are used to detect the location of studs behind a wall and to alert the user to that location. Although the stud sensors work by sensing changes in a wall’s density, the stud sensor’s user is really not interested in determining a wall’s density. Instead, the stud sensor is only sensing the changes in a wall’s density so that its user can find the location of the studs behind the wall. Hence, the stud sensors do not perform a checking function. Because the stud sensors are not used for checking or measuring, we find that they do not meet the terms of heading 9031, HTSUS.

In its previous submission, counsel contended that the stud sensors should be classified in heading 9027, HTSUS, as instruments and apparatus for physical or chemical analysis or as instruments and apparatus for electrical or physical analysis. The stud sensors do not perform any physical or chemical analysis and do not check or measure quantities of heat, sound, or light. Therefore, the stud finders cannot be classified in heading 9027, HTSUS. Counsel alternatively proposed that the stud sensors should be classified in heading 9030, HTSUS, as oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities. The stud finders do not analyze, measure, or check electrical quantities. Thus, they are precluded from being classified in heading 9030, HTSUS. The remaining two alternative headings that have been proposed for classifying the stud sensors are heading 8531, HTSUS, and heading 8543, HTSUS. Heading 8543, HTSUS, is a general basket provision for Chapter 85 of the HTSUS. This means that for merchandise to be classified in heading 8543, HTSUS, it must be an electrical machine that has an individual function that is not specified or included in other headings of Chapter 85 of the HTSUS. Therefore, if the stud sensors can be classified in heading 8531, HTSUS, they would be precluded from being classified in heading 8543. Thus, we must first consider whether the stud sensors can be classified in heading 8531, HTSUS. In analyzing heading 8531, HTSUS, we have reviewed EN 85.31, which states:

With the exception of signalling apparatus used on cycles or motor vehicles (heading 85.12) and that for traffic control on roads, railways, etc. (heading 85.30), this heading covers all electrical apparatus used for signalling purposes, whether using sound for the transmission of the signal (bell, buzzers, hooters, etc.) or using visual indication (lamps, flaps, illuminated numbers, etc.), and whether operated by hand (e.g., door bells) or automatically (e.g., burglar alarms).

Previously, CBP has determined that heading 8531, HTSUS, covers signaling devices that detect and/or locate things. For example, in NY A87660, dated October 15, 1996, CBP ruled that various metal detectors with different specifications and sensitivities were classified in heading 8531, HTSUS, as electric sound or visual signaling apparatus, specifically in subheading 8531.80.80, HTSUS.

In another ruling, NY K81371, dated December 22, 2003, we considered the classification of needle detectors. These devices could sense the presence of a needle or other metallic objects in fabric and clothing. When the device detected a needle or other metallic objects, it would give off an audible or visual signal. We determined that the needle detectors were classified in heading 8531, HTSUS, specifically in subheading 8531.80.00, HTSUS.

Based on the language of the HTSUS, the ENs and these prior rulings, we believe that heading 8531, HTSUS, includes signaling devices, which detect or locate things. Like the metal detectors in NY A87660 and the needle detectors in NY K81371, the stud sensors in this case are signaling devices that will emit their audio and visual signals when they detect and locate something, which in this case are studs and joists behind walls. Accordingly, we find that they are properly classified in heading 8531, HTSUS, as electric sound or visual signaling apparatus, and thus for the reason previously explained, they are precluded from classification in heading 8543, HTSUS.

The next issue that we must consider is determining in which of the subheadings of heading 8531, HTSUS, are the stud sensors classified. GRI 6 provides that for legal purposes, classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level. Since GRI 6 uses the phrase "for legal purposes" the preceding GRIs are to be applied at the subheading level necessary for the final legal classification of the goods for tariff purposes.

There are two alternative subheadings in heading 8531, HTSUS, to consider. First of the subheadings, 8531.20.00, HTSUS, covers indicator panels incorporating liquid crystal devices (LCD’s) or light emitting diodes (LED’s). The second subheading under consideration is subheading 8531.80.00, HTSUS, which covers other apparatus.

EN 85.31 Section (D) states:

Indicator panels and the like. These are used (e.g., in offices, hotels and factories) for calling personnel, indicating where a certain person or service is required, indicating whether a room is free or not. They include

(1) Room indicators.
(2) Number indicators.
(3) Office indicators.
(4) Lift indicators.
(5) Engine room telegraph apparatus for ships. (6) Station indicating panels
(7) Indicators for race courses, football stadium, bowling alleys, etc....

The stud sensors contain either an LCD or an LED. In HQ 954638, December 2, 1993, we indicated that only those LCDs which are limited by design and function to that of “signaling” are classifiable in the heading 8531, HTSUS. In HQ 955062, dated March 21, 1994, we ruled that several different modules with LCDs such as a global positioning indicating position/destination; an audio/visual system indicating position/destination; traffic signal indicating system controller operation; portable data indicating data stored collector; lottery system indicating logged data; medical instrument indicating patient blood gasesetc., were classified in subheading 8531.20.00, HTSUS, as signaling apparatusindicator panels. However, the products involved in HQ 955062 were just LCD modules displaying visual signals indicating limited information. They were not complete apparatus but components of larger systems that needed to be connected to some other component of that system to function. In contrast in this case, although the subject stud sensors incorporate either an LED or an LCD, they are not just modules that display information. The stud sensors are complete units in themselves. In addition to signaling, the stud sensors detect and locate studs behind a wall. They provide a visual and audio signal when studs are located. In this way, the stud sensors are similar to other items that signal after they detect and locate something, such as metal detectors and needle detectors, which we have previously held to be classified in subheading 8531.80, HTSUS, as signaling devices, other apparatus. See NY A87660 and NY K81371, Supra. Therefore, we conclude that because the stud sensors are complete apparatus for signaling, they are classified in subheading 8531.80.00, HTSUS as “Electric sound or visual signaling apparatus: Other apparatus.”

HOLDING:

By application of GRI 1 and GRI 6, the “Stud Sensor" and “Pro Stud Sensor” are classified in heading 8531, HTSUS, as “Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 8512 or 8530; parts thereof.” They are specifically provided for in subheading 8531.80.00, HTSUS, as other apparatus, at a general, column one rate of duty of 1.3 percent ad valorem. Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a net duty reduction and a partial allowance. In accordance with the Protest/Petition Processing Handbook (CIS HB, 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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