CLA-2 CO:R:C:M 956012 MBR
Mr. Michael Mahone
Porter International Inc.
P.O. Box 81488
San Diego, CA 92138
RE: Kodak EktaPro HS Motion Analyzer; Model 4540; Television
Camera; HQ 089996; HQ 088044; HQ 086847; HQ 088336; Pfaff
American Sales Corp.; Ugg Int'l, Inc.; Mita Copystar Corp.;
NEC America, Inc.; Corporacion Sublistatica, S.A.; Davis
Turner & Co.; Simmon Omega, Inc.; Trans-Atlantic Co.;
Ameliotex, Inc.; Esco Mfg. Co.;
Dear Mr. Mahone:
This is in reply to you letter of November 1, 1993, to the
Area Director of Customs, New York Seaport, on behalf of the Kodak
Corporation, requesting classification of the "EktaPro HS Motion
Analyzer," model 4540, under the Harmonized Tariff Schedule of the
United States (HTSUS). You letter was forwarded to this office for
reply.
FACTS:
The Kodak EktaPro HS Motion Analyzer, model 4540 is an ultra
high-speed video recording system with the ability to record up to
4,500 full frames per second and up to 40,500 pictures per second
for immediate playback. These speeds allow analysis and image
storage of extremely rapid events such as air bag deployment and
ballistics studies. This system uses solid state memory which
eliminates the need for magnetic tape. Once captured by the
analyzer, the stored images can be downloaded to standard video
tape for future reference and analysis.
The EktaPro has the ability to depict motion in replay mode
at the following fixed rates (frames per second): 2, 5, 10, 15, 30
(or X 10, i.e., 20, 50, 100, 150, 300).
The internal sensor element is a 256 X 256 charge coupled
device ("CCD") with 256 levels of gray. CCDs are semiconductors
which contain a grid of numerous photosensitive cells, or pixels.
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As the image-forming light of an object is focused onto the grid,
each pixel receives a certain quantity of light which is translated
into an electrical charge. The result is a pattern of electrical
charges which represents an image. The EktaPro system consists of
the following components: 1) HS-4540 processor (system controller),
2) HS-4540 imager (camera), 3) HS-4540 Keypad (user interface),
Imager cables (image connector).
ISSUE:
What is the classification of the "Kodak EktaPro HS Motion
Analyzer, Model 4540," under the Harmonized Tariff Schedule of the
United States (HTSUS)?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
You argue that classification is appropriate under heading
8521, HTSUS. Heading 8521, HTSUS, provides for: "[v]ideo recording
or reproducing apparatus." The Harmonized Commodity Description
and Coding System Explanatory Notes ("ENs"), which provide
classification guidance for the HTS, regarding heading 85.21, page
1370, state as follows:
(A) Recording and Combined Recording
and Reproducing Apparatus
In television image and sound recording apparatus
electric impulses (signals) which correspond to the images and
the sound are recorded on media, generally consisting of
magnetic tape. Generally the sound accompanying the image is
recorded simultaneously on the same media, on one or several
different tracks from that carrying the video recording. The
signals can be obtained by connecting the recorder either to
a television camera or to a television receiver.
When used for reproduction, the apparatus convert the
recording (e.g., the magnetic patterns on the tape) into video
signals. These signals are passed on either to a transmitting
station or to a television receiver.
See Pfaff American Sales Corp. v. United States, Slip Op. 93-
101 (June 14, 1993) "The court first examines the relevance of the
Explanatory Notes in determining the meaning of the term.... In
so doing, the court recognizes that the Explanatory Notes do not
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constitute controlling legislative history. Rather, their purpose
is to offer guidance in interpreting HTSUS subheadings." Ugg
Int'l, Inc. v. United States, 17 CIT __, 813 F. Supp. 848, 853
(1993); Mita Copystar Corp. v. United States, No. 93-76 (CIT May
20, 1993).
You state that the instant video recording device was designed
to use random access memory ("RAM") in order to store the video
images, instead of magnetic tape, because even high speed magnetic
tape was not able to accurately record the high volume of images
that the HS-4540 system provides (up to 4,500 full frames per
second). Therefore, this is a technological advancement over the
prior more common magnetic tape recording video machines.
The court has stated that "[i]t must also be remembered that
the tariff statutes were enacted 'not only for the present but also
for the future, thereby embracing articles produced by technologies
which may not have been employed or known to commerce at the time
of the enactment * * *.'" NEC America, Inc. v. United States, 8 CIT
184, 186 (1984), citing Corporacion Sublistatica, S.A. v. United
States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also
Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669
(1957). See also Simmon Omega, Inc. v. United States, 83 Cust. Ct.
14, C.D. 4815 (1979), and Trans-Atlantic Co. v. United States, 471
F. 2d 1397, 60 CCPA 100, C.A.D. 1088 (1973), in which the courts
have held that technological advancements and "improvement in the
design of an article does not militate against its continuing to
be a form of the named articles."
In HQ 088044, dated April 4, 1991, Customs held that a read
only memory ("ROM") cartridge which reproduced the entire text of
a book in audio form was classifiable in subheading 8519.99.00,
HTSUS, which provides for: "[t]urntables, record players, cassette
players and other sound reproducing apparatus, not incorporating
a sound recording device: [o]ther sound reproducing apparatus:
[o]ther." Therefore, a ROM chip was found classifiable as
"reproducing apparatus."
Similarly, the EktaPro HS-4540 motion analyzer is classifiable
in heading 8521, HTSUS, which provides for video recording or
reproducing apparatus, whether or not incorporating a video tuner.
The EktaPro is merely a technological advancement over the prior
magnetic tape video recording machines.
Furthermore, it is commonly and commercially known as a high
speed video recording system. The court has stated that "[t]he
tariff schedules are written in the language of commerce, and the
terms used are to be given their commercial or common meaning."
See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200,
565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA
71, 73 C.A.D. 1167, 530 F.2d 949, 951 (1976).
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Consideration was also given to whether HQ 089996, dated
October 23, 1991, regarding the classification of an electronic
module which made repetitive animal sounds upon command, should be
controlling for the subject goods. However, in that decision we
distinguished the electronic animal noise module from the reading
tray ROM cartridges of HQ 088044, when we stated: "The electronic
module in question uses fixed integrated circuits which are
designed to perform the same function over and over that of
reproducing the sound of the object chosen by the reader."
Therefore, the limited capability of the electronic module was
found not to be within the purview of the heading "other sound
reproducing apparatus." Similarly, other novelty articles which
incorporate limited use integrated circuits (such as greeting
cards, Christmas ornaments, hats, etc.) are also not classifiable
as sound reproducing apparatus. See for example, HQ 081831, dated
May 17, 1989, and HQ 081966, dated November 18, 1988.
Heading 9006, HTSUS, provides for: "[p]hotographic (other than
cinematographic) cameras." However, in HQ 086847, dated April 20,
1990, and HQ 088336, dated August 20, 1991, Customs held that:
In addition to the guidance provided by the HTSUSA's
classification of electrical articles, there is lexicographic
authority for the position that electronic devices which use
CCD's are distinguished from photographic articles. The
McGraw Hill Encyclopedia of Science and Technology, Vol. 3,
p. 168, provides:
Electronic camera. Advances in the field of
solid-state electronics have made possible
the development of the electronic still camera.
Unlike photographic cameras, in which film senses
and records the image-forming light, the electronic
still camera uses a solid-state image sensor to
sense the image-forming light and a separate recording
medium to record and store the picture. (Emphasisadded).
In our opinion an electronic still video camera which
uses a charge coupled device and records electrical
representations of images on magnetic discs principally
functions as an electrical apparatus and not as a photographic
apparatus. Thus, still video cameras are not classifiable as
photographic cameras in Heading 9006.
Similarly, for the same reasons, video cameras such as that
encompassed in the "EktaPro" system are not classifiable in heading
9006, HTSUS, as photographic cameras. Furthermore, we are not
convinced that when the court defined "photography" in St. Regis
v. United States, 11 CIT 601 (1987), that it intended a solid-
state image sensor to be encompassed within the term "sensitized
surface."
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The EktaPro system consists of the following components: 1)
HS-4540 processor (system controller), 2) HS-4540 imager (camera),
3) HS-4540 Keypad (user interface), Imager cables (image
connector). The Legal Note 4 to Section XVI provides the following
classification guidance regarding functional units, such as the
instant system:
Where a machine (including a combination of machines) consists
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 chapter 84
or chapter 85, then the whole falls to be classified in the
heading appropriate to that function.
The EktaPro is a group of machines, interconnected by cables,
intended to contribute to the clearly defined function of video
recording or reproducing apparatus. Therefore, the system is
properly classifiable in subheading 8521.90.00, HTSUS, which
provides for: "[v]ideo recording or reproducing apparatus, whether
or not incorporating a video tuner: [o]ther."
HOLDING:
The "Kodak EktaPro HS Motion Analyzer, Model 4540" is
classifiable in subheading 8521.90.00, HTSUS, which provides for:
"[v]ideo recording or reproducing apparatus, whether or not
incorporating a video tuner: [o]ther." The rate of duty is 3.7%
ad valorem.
Sincerely,
John Durant, Director