CLA-2 RR:CR:GC 965484 GOB
Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94111
RE: Protest 2809-01-100928; RoboVector; RoboSquare; RoboLaser
Dear Port Director:
This is our decision regarding Protest 2809-01-100928, filed on behalf of TLZ, Inc. (“protestant”), concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a RoboVector, RoboLaser, and RoboSquare.
FACTS:
The file reflects the following. The 11 entries at issue were filed between December 1, 2000 and January 15, 2001. They were liquidated between October 12, 2001 and November 30, 2001. The protest was filed on December 3, 2001.
The RoboVector is stated to be an electro-mechanical pendulum-based leveling system which consists of two printed circuit boards and a visible laser diode. The laser diode is suspended on a pendulum and uses gravity to find true level. The RoboVector does not use traditional mechanical “spirit vials” for leveling.
The RoboLaser is stated to be an electro-mechanical pendulum-based visible leveling system which consists of five printed circuit boards and a silicon-based visible laser diode. The laser diode is suspended on a pendulum and uses gravity to find true level. It also has a remote control to allow the user to rotate the unit from up to 100 feet. The RoboLaser does not use traditional mechanical “spirit vials” for leveling.
The RoboSquare is stated to be an electro-mechanical pendulum-based visible leveling system which consists of one printed circuit board and a silicon-based visible laser diode.
These goods are used in construction applications to: align pipes, piers, and posts; square foundations, walls, decks, window frames and door frames; plumb walls, posts and door frames; set drainage grades; and furnish reference points for HVAC (heat, ventilation, air conditioning), lighting, sprinkler systems and skylights.
The RoboVector, RoboLaser, and RoboSquare were entered under subheading 9015.30.80, HTSUS, and the entries were liquidated under that provision. The protestant now claims that they are classified in subheading 9015.30.40, HTSUS.
ISSUE:
What is the classification under the HTSUS of the RoboVector, RoboLaser, and RoboSquare?
LAW AND ANALYSIS:
We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).
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 GRI’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
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:
9015.30 Levels:
9015.30.40 Electrical
9015.30.80 Other
* * * * *
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:
9031.49.90 Other
EN 90.15 provides in pertinent part as follows:
This heading does not cover:
. . .
(b) Levels (air bubble type, etc.) used in building or constructional work (e.g., by masons, carpenters or mechanics), and plumb-lines (heading 90.31).
As stated above, the RoboVector, RoboSquare, and RoboLaser are types of levels. “Level” is defined in pertinent part as follows in The Random House Dictionary of the English Language (unabridged ed.; 1973): “a device used for determining or adjusting something to a horizontal surface . . . Also called a surveyor’s level, an instrument for observing levels, having a sighting device, usually telescopic, and capable of being made precisely horizontal ...” We believe that the RoboVector, RoboSquare, RoboLaser meet the first definition above, i.e., “a device used for determining or adjusting something to a horizontal surface.”
We find that the RoboVector, RoboSquare, and RoboLaser are not described in heading 9015, HTSUS. The only function described in the heading which might describe these goods is “surveying.” However, the protestant has not established that these goods are used for surveying or that they are surveyor’s levels. Further, there is no indication that they are the same or similar to the class of levels goods described in EN 90.15. We find that the RoboVector, RoboSquare, and RoboLaser are within the exclusion of EN 90.15, excerpted above. The laser diode aids these goods in determining true level. Therefore, we find that they are not described in heading 9015, HTSUS.
The exclusion directs us to heading 9031, HTSUS, which includes the following language: “ . . . not specified or included elsewhere in this chapter . . .” After a review of the other headings in Chapter 90, HTSUS, we conclude that none of these other headings describes the RoboVector, RoboSquare, and RoboLaser. Further, they are measuring or checking instruments, i.e., they are described in heading 9031, HTSUS. They contain a laser which is an optical device incorporating optical elements.
Accordingly, we find that the RoboVector, RoboSquare, and RoboLaser are described in heading 9031, HTSUS, and are classified in subheading 9031.49.90, HTSUS, as: “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: . . . Other: . . . Other.”
This determination is consistent with HQ 965389 dated April 11, 2002, where we found the RoboVector to be classified in subheading 9031.49.90, HTSUS.
HOLDING:
The RoboVector, RoboSquare, and RoboLaser are described in heading 9031, HTSUS, and are classified in subheading 9031.49.90, HTSUS, as: “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: . . . Other: . . . Other.”
Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division