CLA-2 RR:CR:GC 965707 RFC
Port Director
U.S. Customs Service
44845 Falcon Place, Suite 101A
Sterling, VA 20166
RE: Protest No. 5401-02-100012; unmanned aerial vehicle
Dear Port Director:
This is in reference to a Protest 5401-02-100012 filed by Schiebel Instruments, contesting the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an unmanned aerial vehicle (UAV) and several types of spare parts for the vehicle.
FACTS:
The facts as presented are as follows: The merchandise is a UAV, which is known as the “Camcopter.” It was imported on September 23, 2001 and entered on September 24, 2001. The entry was liquidated on February 8, 2002.
The merchandise was classified at liquidation in HTSUS subheading 8529.90.8100, which provides for parts suitable for use solely or principally with the apparatus of headings 8525 to 8528. The protestant contends that the UAV is classified in HTSUS subheading 8802.11.00, which provides for helicopters.
The port received the protest on April 12, 2002. Therefore, the protest was filed in a timely manner within ninety days from the date of liquidation.
In an April 12, 2002, letter from a customs broker on behalf of Scheibel Instruments, it states as follows:
Please accept this protest for the above referenced entry number. We are protesting the classification decision by the Import Specialist to classify this merchandise as a video camera, 8529.90.8100. This merchandise is used as follows, to quote: “The Camcopter mission applications include ground, sea and aerial surveillance, target acquisition, target designation, communications relay, precision delivery and minefield and surface ordnance survey.” This Unmanned Aerial Vehicle is not a video camera, although it does have a camera device on the machine, the camera acts as eyes only for the controller that is stationed at the Control Station and the camera has no recording functions. There is an onboard CCD pilot camera where a data transceiver receives the eventual control commands and continuously transmits navigational and operational data to the control station. It is then processed through the control station into the storage media consisting of two 8GB removable hand disc drives, an integrated CD ROM drive, an integrated read/write DVD drive and a 3.5” floppy disk drive.
We would request that this Unmanned Aerial Vehicle be classified as a helicopter under HTSUS # 8802.11.0030 for new camcopters and 8802.11.0090 for used. The equipment was reviewed by the Department of State and ruled to be an Aerial Vehicle. This equipment is licensed for import and export by the State Department.
In a September 24, 2002 facsimile letter from Schiebel Technology, Inc. it indicates that the pilot control camera is the only camera that comes with the system, and its purpose is pilot navigation for the helicopter. On September 25, 2002, messages from Schiebel Technology, Inc. indicate that:
[T]he unique purpose of this [pilot] camera is for pilot navigation in manual mode. The helicopter has the capability to travel far enough so that the pilot can no longer see it. At this point, if it is operating in manual mode, the pilot must look on the control station screen where there is a video feed from the on-board pilot camera. He then uses this feed to “maintain situational awareness and orientation.” This camera is fix-mounted to the front of the helicopter, so it cannot be rotated, aimed or directed separately from the helicopter. In other words, it only sees what the helicopter it is aiming towards, because this is what the pilot needs to see.
o o o
[T]he camera is forward-looking, so it is not focused on the ground below the helicopter at any time. The footage is of what an on-board pilot would be seeing in front of him.
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[The pilot camera]…would not be used for aerial surveillance or observation simply because it does not maneuver (pan/tilt etc). It would be impractical. The angle at which it is attached to the helicopter is designed for optimum pilot visibility which certainly would not be ideal for ground surveillance, mainly because it is not downward looking.
These messages also indicate that items may be mounted onto a Camcopter aerial vehicle for the application for which it is intended. That could include the mounting of a separate camera whose use would depend on the intended application for the aerial vehicle (e.g., a gimbled camera could be mounted on the aerial vehicle that would be used for power-line inspection).
On the web site of Schiebel (www.schiebel.com), the Camcopter UAV system is described as follows:
CAMCOPTER® UNMANNED AERIAL VEHICLE SYSTEM
The CAMCOPTER® is a fully autonomous Aerial Vehicle System developed for a wide variety of civil and military applications. The system consists of the Aerial Vehicle and the Control Station with associated antennas and support equipment including an optional support vehicle. The CAMCOPTER® operates in vertical take-off and landing modes, without any need for launch and recovery equipment.
The system's modular design allows it to be mancarried and easily transported in a light utility vehicle. The Aerial Vehicle can be pre-programmed to fly along preselected routes or can be operated manually. In both modes, the Aerial Vehicle is autonomously stabilized and can hover on station for extended periods. The system is designed to minimize the need for operator training. It has integrated fail-safe mechanisms which reduce risk of inadvertent damage.
Applications
The CAMCOPTER® mission applications include ground, sea and aerial surveillance, target acquisition, target designation, communications relay, precision delivery and minefield and surface ordnance survey. It is ideal for use in high-threat environments. The easy handling, small size, and stealth characteristics of the Aerial Vehicle ensure survivability. In addition to military missions, the CAMCOPTER® UAV system is also ideally suited for a broad range of civilian and police applications such as disaster response, day/night traffic surveillance, environmental monitoring, and border patrol. The CAMCOPTER® has demonstrated successful operation from a ship at sea without additional landing assistance.
Aerial Vehicle
The Aerial Vehicle is built of robust, lightweight, high-strength materials. It can be operated in automatic and manual modes. In automatic mode the operator observes the flight at the Control Station and flight control is executed according to a preprogrammed mission plan. In manual mode, the operator directs and observes the computer-stabilized flight of the Aerial Vehicle from the Control Station, which is linked to the on-board CCD pilot camera.
The operator maintains situational awareness and flight orientation using the pilot camera and icons and missions tracks on the control station screen. The system allows the operator to interrupt the preprogrammed flight, execute maneuvers manually, and then resume automatic flight mode.
The CAMCOPTER® is powered by a two-stroke gasoline engine specially selected for its reliability in harsh environments at all altitudes. The fuel tank volume can be selected as required for individual missions and payloads.
The autonomous flight control system, based on an Inertial Navigation System (INS), ensures flight stability in all phases of flight. It contains accelerometers, solid state gyros, and is combined with a DGPS positioning system.
An intelligent power management system controls the on-board power supply, consisting of alternator and rechargeable back-up battery. A data transceiver receives the eventual control commands and continuously transmits navigation and operational data to the Control Station.
The mission radius depends on the selected ground data link antenna. The weight of the sensor array package is limited only by the desired flight time versus the maximum payload.
Ground Station
The CAMCOPTER® Control Station is mounted in a ruggedized container and consists of a dual Pentium based computer system with detachable 18 inch monitor and keyboard. It provides:
Waypoint Mission Planning
Flight Control
Payload Control
The mission planning and preparation is done with the Mission Control Program, generating mission data based on a Geographical Information System (GIS).
The large computer screen displays the actual location of the Aerial Vehicle on a digital map as well as the programmed route, waypoints, mission data, and real-time video.
A variety of digital map mediums may be used ranging from detailed maps to aerial photographs.
The Pilot Control Unit provides the operator a computerized checklist and control of the Aerial Vehicle. It consists of a control stick and a control panel that is used to select the flight mode, i.e. Vertical Take-Off and Landing, Automatic Mode, Manual Mode, and Homing. Selected flight, performance and warning data are displayed on the control panel.
Payload sensor information in addition to flight control information may be displayed real-time on the Control Station. Data may be recorded for later playback and review. Additionally, all flight parameter data is automatically recorded in computer files for review.
Technical data on this web site describes the on-board CCD pilot camera as a “forward looking CCD camera (pilot camera).”
ISSUES:
What is the classification under the HTSUS of the above-described merchandise?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States (HTSUS). The tariff classification of merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. § 1204(a), 1204(c)).
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the other GRIs.
When goods are, prima facie, classifiable under two or more headings, classification is to be effected pursuant to the provisions of GRI 3. GRI 3(b) states, in part, that "[m]ixtures [and] composite goods consisting of different materials or made up of different components...which cannot be classified by reference to 3(a)...[(i.e., there is no heading in the schedule that provides the most specific description among headings providing a more general description)], shall be classified as if they consisted of the material or component which gives them their essential character...."
GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same 4-digit heading under the subheading that most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized Commodity Description and Coding System (hereinafter "Harmonized System") represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.
For purposes of this protest, two headings will be reviewed for classification of the UAV under consideration: heading 8525 (as a television camera on the basis of the forward-looking on-board CCD pilot camera) and heading 8802 (as a helicopter on the basis of the UAV or aerial vehicle).
Heading 8525 provides, in part, for television cameras. Item (C) to the Explanatory Notes to heading 8525 pertains to television cameras and states that:
This group covers television cameras, whether or not with an incorporated device for remote control of lens and diaphragm as well as for remote control of the horizontal and vertical movement of the camera (e.g., television cameras for television studios or for reporting, those used for industrial or scientific purposes or for supervising traffic).
Item (C) to HS Explanatory Notes to heading 8525 (2nd ed., 1996), page1488.
Heading 8802 provides, in part, for helicopters. The Explanatory Notes to heading 8802 state, in pertinent part, that:
This heading covers…Heavier-than-air aircraft, which are mechanically propelled. This group includes aeroplanes (landplanes, seaplanes and amphibians), gyroplanes (equipped with one or more rotors rotating freely on vertical axes), and helicopters (equipped with one or more mechanically driven rotors). (Emphasis added.)
Such aircraft may be used for military purposes, the transport of persons or goods or for such activities as training, aerial photography, agricultural work, rescue duties, fire fighting or for meteorological or other scientific purposes.
Radio-guided aircraft controlled from the ground or from another aircraft are covered by this heading, as are aircraft specially constructed so that they can be used as road vehicles. (Emphasis added.)
Item (1) to HS Explanatory Notes to heading 8802 (2nd ed., 1996), pages 1564-65.
Clearly, heading 8802 covers helicopters that are controlled from the ground such as the Camcopter UAV.
The forward-looking on-board CCD pilot camera is a critical component of the navigational system of the aerial vehicle or helicopter as this is the only way to fly the aerial vehicle once it is out of visual range. As indicated above, the forward-looking on-board CCD pilot camera has no independent function apart from the flight of the aerial vehicle (e.g., ground surveillance). Therefore, the forward-looking on-board CCD pilot camera works in conjunction with the control station to navigate and operate the aerial vehicle. Accordingly, the Camcopter UAV is not classifiable in heading 8525 as a television camera based on the forward-looking on-board CCD pilot camera, and that heading does not merit consideration as a competing heading for purposes of GRI 3. Thus, the merchandise is not classified by application of GRI 3 because it is not classifiable under two or more headings. (As it has been found not to be classified in heading 8525, the Camcopter UAV and the spare parts for and imported with it are not classified in heading 8529 as “parts suitable for use or principally with the apparatus of heading 8525” as the merchandise was classified at liquidation.)
In light of the above, the Camcopter UAV is classified in heading 8802 as a helicopter by application of GRI 1. The spare parts for and imported with the Camcopter UAV are classified in heading 8803 as parts of goods of heading 8802 also by application of GRI 1.
HOLDING:
The Camcopter UAV is classified in heading 8802 (and in subheading 8802.11.00) and the spare parts are classified in heading 8803 (and in the subheading appropriate to the specific type of spare part) of the HTSUS of 2001. The protest should be granted.
In accordance with section 3 A (11) (b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject Revised Protest Directive, you are to mail this decision, together with Customs Form 19, to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty (60) days from the date of this decision, the Office of Regulations and Rulings will make the decision available to U.S. Customs Service personnel, and to the public on the U.S. Custom Service web site (ww.customs.gov), by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division