CLA-2 OT:RR:CTF:TCM H163998 TNA
Port Director, Service Port-Minneapolis
U.S. Customs and Border Protection
330 2nd Ave. South, Suite 560 Minneapolis, MN 55401
Attn: Michael Carriere, Import Specialist
Re: Application for Further Review of Protest No: 3501-11-100006; Classification of the AG4-4E Rotoscan Safety Laser Scanner
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3501-11-100006, timely filed on January 7, 2010, on behalf of Banner Engineering Corp. (“Banner Engineering” or “Protestant”). The AFR concerns the classification of the AG4-4E Rotoscan Safety Laser Scanner (“Rotoscan” or “AG4-4E”) under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise is the AG-4E Rotoscan sensor (“Rotoscan”). The Rotoscan functions by being installed or integrated into another machine. The Rotoscan is a safety device that detects objects in a defined area and warns a user of these objects so as to prevent injury to the user. The Rotoscan consists of three main elements: an emitter, a receiver, and a mirror. The emitter is a semi-conductor laser diode (“LED”) with a 950 millimeter wavelength. The receiver is a phototransistor. The mirror is a rotating mirror that functions via a motor. The emitter pulses infra-red light toward the mirror. The rotating mirror reflects the light in different directions, allowing the Rotoscan to detect objects in an entire plane. When this light is blocked by an object in the path of the light, the phototransistor receives some of the reflected light. The emitter and receiver then become optically coupled; when this happens, the Rotoscan’s safety outputs are shut off and a warning is sent to the user of the machine that an object is in its field. The Rotoscan’s manual states that:
The Banner AG4 Safety Laser Scanner (the Scanner) is an optical, two-dimensional measuring Safety Laser Scanner… The Scanner calculates the precise position of an obstruction from the light travel time and the pulse’s emitted angle. If the obstruction is within the user-defined Protective Field, the Scanner switches the safety outputs OFF. Only when the Protective Field is free of obstructions does the Scanner turn its safety outputs back ON, either automatically or following a manual restart (reset) signal, depending on the operating mode…. The Scanner may NOT be used with any machine that cannot be stopped immediately after a stop signal is issued, such as single-stroke (or “full-revolution”) clutched machinery, or any machine with inadequate or inconsistent machine response time and stopping performance.
See http://info.bannerengineering.com/xpedio/groups/public/documents/ literature/144924.pdf
The subject merchandise entered on June 10, 2009 under subheading 8541.40.80, HTSUS, which provides for “Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof: Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes: Other: Optical coupled isolators.” U.S. Customs and Border Protection (“CBP”), relying on NY D81305, dated September 10, 1998, liquidated the merchandise on July 30, 2010, 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.” The importer filed this protest and AFR on January 7, 2011, claiming classification as entered in subheading 8541.40.80, HTSUS.
ISSUE:
Whether the subject AG4-4E Rotoscan is classified as an optical coupled isolator of heading 8541, HTSUS, or as a measuring and checking device of heading 9031, HTSUS?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 3501-11-100006 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the Port’s decision is alleged to be inconsistent with a ruling of CBP’s Commissioner or by his designee, or with a decision made at any port with respect to the same or similar merchandise. Protestant argues that the Port’s liquidation was inconsistent with HQ 088341, dated February 26, 1991, HQ 957646, dated May 15, 1995, and HQ 957510, dated March 21, 1995, NY H81365, dated June 25, 2001, NY H82842, dated July 17, 2001, and NY I87325, dated October 25, 2002. Specifically, Protestant argues that the subject Rotoscan operates as an optical coupled isolator as described and defined in these rulings.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, 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.
The HTSUS headings under consideration are the following:
8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof:
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
Note 1 to Section XVI, HTSUS, which covers heading 8541, HTSUS, provides that:
This section does not cover:…
(m) Articles of chapter 90
Legal Note 8 to Chapter 85, HTSUS, provides that:
For the purposes of headings 8541 and 8542:
(a) “Diodes, transistors and similar semiconductor devices” are
semiconductor devices the operation of which depends on variations in resistivity on the application of an electric field;
(b) “Electronic integrated circuits” are:
Monolithic integrated circuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor or compound semiconductor material (for example, doped silicon, gallium arsenide, silicon germanium, iridium phosphide) and are inseparably associated;
Hybrid integrated circuits in which passive elements (resistors, capacitors, inductances, etc.), obtained by thin- or thick-film technology, and active elements (diodes, transistors, monolithic integrated circuits, etc.), obtained by semiconductor technology, are combined to all intents and purposes indivisibly, by interconnections of interconnecting cables, on a single insulating substrate (glass, ceramic, etc.). These circuits may also include discrete components;
Multichip integrated circuits consisting of two or more interconnected monolithic integrated circuits combined to all intents and purposes indivisibly, whether or not on one or more insulating substrates, with or without leadframes, but with no other active or passive circuit elements.
For the classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature, except in the case of heading 8523, which might cover them by reference to, in particular, their function.
Additional U.S. Note 3 to Chapter 90, HTSUS, provides that:
For the purposes of this chapter, the terms “optical appliances” and “optical instruments” refer only to those appliances and instruments which incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 8541, HTSUS, states, in pertinent part, the following:
(B) PHOTOSENSITIVE SEMICONDUCTOR DEVICES
This group comprises photosensitive semiconductor devices in which the action of visible rays, infra red rays or ultra violet rays causes variations in resistivity or generates an electromotive force, by the internal photoelectric effect.
Photoemissive tubes (photoemissive cells) the operation of which is based on the external photoelectric effect (photoemission), belong to heading 85.40.
The main types of photosensitive semiconductor devices are :
(1) Photoconductive cells (light dependent resistors), usually consisting of two electrodes between which is a semiconductor substance (cadmium sulphide, lead sulphide, etc.) whose electrical resistance varies with the intensity of illumination falling on the cell.
These cells are used in flame detectors, in exposure meters for automatic cameras, for counting moving objects, for automatic precision measuring devices, in automatic door opening systems, etc.
(2) Photovoltaic cells, which convert light directly into electrical energy without the need for an external source of current. Photovoltaic cells based on selenium are used mainly in luxmeters and exposure meters. Those based on silicon have a higher output and are used, in particular, in control and regulating equipment, for detecting light impulses, in communication systems using fibre optics, etc.
The EN to heading 9031, HTSUS, states, in pertinent part, the following:
In addition to profile projectors, this heading covers measuring or checking instruments, appliances and machines, whether or not optical….
This heading also covers optical type measuring and checking appliances and instruments…
Protestant argues that the subject Rotoscan operates as an optical coupled isolator as described and defined in HQ 088341, HQ 957646, HQ 957510, NY H81365, NY H82842, NY I87325. As a result, Protestant argues for classification in heading 8541, HTSUS, as an optical coupled isolator. Protestant states that the AG4-4E is not an instrument that measures or checks in the same way as the Proximity Laser Scanner of NY D81305, the ruling on which the Port relied to liquidate the subject merchandise in heading 9031, HTSUS. Protestant further attempts to distinguish the subject Rotoscan from NY D81305 by explaining that the Rotoscan emits infra-red rays.
In response, note that Note 1 to Section XVI, HTSUS, of which heading 8541, HTSUS, is a part, excludes articles of Chapter 90, HTSUS, from Section XVI, HTSUS. Thus, we begin our analysis by determining whether the subject Rotoscan is an article of Chapter 90, HTSUS. It is undisputed that the Rotoscan uses light to detect object in its field. As such, it is an optical device. Furthermore, the Rotoscan’s rotating mirror performs a vital function. The mirror vastly increases the field that the Rotoscan scans in order to detect objects; without the mirror, the Rotoscan would only scan in a line, rather than scanning a plane. As a Safety Scanner functions by shutting of dangerous machinery when it gets too close to other objects, functioning without the mirror would render it almost useless. CBP has consistently classified optical merchandise where a mirror is but one component in Chapter 90, HTSUS; in these instances, as in the present case, the mirror itself has an optical function because it reflects light. See, e.g., NY 889488, dated September 15, 1993; HQ 951156, dated August 25, 1992; HQ H154040, dated June 9, 2011; HQ H044701. Thus, the Rotoscan is an optical article of Chapter 90, HTSUS.
Heading 9031, HTSUS, provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter.” The terms “measuring” and “checking” of heading 9031, HTSUS, are not defined in the HTSUS or in the ENs. In United States v. Corning Glass Works, 66 CCPA 25, 27 (1978), however, the court defined the term “check” 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….” See United States v. Corning Glass Works, 66 CCPA 25, 27 (1978) (“Corning Glass Works”). The court further stated that the provision for “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Id. at 27. As a result, CBP has consistently held that equipment that is principally used in the process of measuring or checking is classifiable under that provision, even if it does not actually perform the measuring or checking operation itself. See HQ 089391, dated February 6, 1992; HQ 953382, dated April 15, 1993; and HQ H009364, dated November 23, 2009. Furthermore, CBP has defined the term “measure” as “[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount …; measure the dimensions of; take the measurements of …; to compute the size of ... from dimensional measurements.” See Webster’s Third New International Dictionary, 1400 (1971). See also HQ H009364, dated November 23, 2009; HQ 965639, dated September 12, 2002; HQ 954682, July 14, 1994.
In the present case, the Rotoscan is a safety device that examines a specified field and shuts off a machine that could be a hazard when objects are in its field of operation. As such, it meets Corning Glass Works’ definition of “checking” in that it investigates and insures the safety of the field. In addition, the Rotoscan performs many subsidiary functions that contribute to its main function of scanning the field; many of these subsidiary functions are themselves measuring or checking functions. For example, the Rotoscan’s manual indicates that the Rotoscan measures speed of the machine in which it is installed, and distance to the detected object in the selected protective field. These functions are clearly within the Corning Glass Works’ definition of “measuring and checking.” As such, the Rotoscan is described by the terms of heading 9031, HTSUS.
The classification of the Rotoscan in heading 9031, HTSUS, is also consistent prior CBP rulings. In particular, it is consistent with NY D81305, in which CBP classified the Proximity Laser Scanner (“PLS”), a non-contact presence-sensing proximity scanner that consisted of a transmitter with a beam splitter, a receiver, and a rotating mirror. The PLS monitored its surroundings using an infrared diode laser beam to detect objects or persons entering its sensing field. A pulsed light reflected off a rotating mirror transmitted a 180 degree pattern around the PLS, creating a sensing field. The PLS used the time interval between the transmitted pulse and the reflected pulse to determine the distance between the PLS and the object. Using the time interval and the angle of the rotating mirror, the PLS also calculated the location of the object. If the object was inside the PLS’ configured protection zones, outputs were generated to a warning alarm or to stop the hazardous machines’ motion.
Protestant argues that the subject Rotoscan is distinguishable from the PLS in that the Rotoscan does not locate the object in the field for the user or measure its distance in the field. Furthermore, Protestant argues that the Rotoscan, rather than setting off an alarm like the PLS, simply shuts its output off when an object is in the field. Protestant also notes that the Rotoscan functions by way of a laser rather than the PLS’ infrared light.
In response, we note that the Protestant’s description of the Rotoscan often contradicts the descriptions found in the Rotoscan’s user manual. For example, the Rotoscan’s manual states that it may not be used with a machine that cannot be stopped immediately after the Rotoscan issues its “stop” signal. It also states that the Rotoscan cannot be used with any machine with inadequate or inconsistent machine response time and stopping performance. See http://info.bannerengineering.com/xpedio/groups/public/documents/literature/144924.pdf. From this, we deduce that the Rotoscan does not simply shut of its safety outputs; it also stops the machine into which it has been integrated so as to remove the threat of a collision. It would not be logical for the Rotoscan only to shut itself off once an endangered object enters its field; yet, Protestant’s submission does not even note that the Rotoscan functions by being integrated into another machine. The Rotoscan’s manual also states that the Rotoscan “calculates the precise position of an obstruction from the light travel time and the pulse’s emitted angle.” Id. This directly contradicts Protestant’s statement that the Rotoscan does not locate the object in the field.
Taking into account the Rotoscan’s specifications as laid out in its user manual, we find the Protestant’s attempts to distinguish the PLS of NY D81305 unpersuasive. In attempting to distinguish the PLS, Protestant states that the Rotoscan “is used to protect people in danger zones or at points of operation on machines and to protect objects and machine parts against the dangers of collision.” The PLS is designed to accomplish the same thing, and it achieves its goal in the same manner as the Rotoscan- by way of a transmitter, receiver, and light reflecting off of a rotating mirror to determine whether objects are in its field. Furthermore, the Rotoscan, like the PLS, warns its user that a potentially dangerous object is in the field- indeed, this function is the very reason both machines exist. In addition, the Rotoscan’s laser, like the PLS’ infrared beam, is an optical device; thus, the fact that one has a laser and the other infrared is insufficient to remove the Rotoscan from heading 9031, HTSUS. As a result, we find that the Rotoscan, like the PLS of NY D81305, is classified in heading 9031, HTSUS.
Because the subject Rotoscan is classified in Chapter 90, HTSUS, it is excluded from classification in Section XVI, HTSUS. See Note 1 to Section XVI, HTSUS. Nonetheless, we address Protestant’s arguments that the Rotoscan is classified in heading 8541, HTSUS, as an optical coupled isolator.
An optical coupled isolator is defined as “a very small four-terminal electronic circuit element that includes in an integral package a light emitter, a light detector, and, in some devices, solid-state electronic circuits.” See McGraw-Hill Encyclopedia of Science and Technology (5th ed.), 1555 (1987). Furthermore, in HQ 088341, HQ 957646, HQ 957510, NY H81365, NY H82842, NY I87325, CBP stated that in optical couple isolators, the light emitter and light detector are so positioned that the majority of the emission of the emitter is optically coupled to the light-sensitive area of the detector. The merchandise at issue in these rulings was classified as optical coupled isolators of subheading 8541.40.80, HTSUS, because they were simple devices that used an electronic input signal to cause an electronic output signal without any electrical connection between the input (i.e., LED) and the output (i.e., phototransistor) terminals.
By contrast, the subject Rotoscan contains more than emitting and receiving devices. For example, the Rotoscan’s mirror expands the area in which the device can scan for objects. Without the mirror, the Rotoscan would function more as a linear device than as a planar device. As such, the mirror performs more than a merely subsidiary function. Thus, the Rotoscan, because it also contains more than simply emitting and receiving devices, is beyond the scope of heading 8541, HTSUS.
Protestant also cites the language of Note 8 to Chapter 85, HTSUS, to support classification in heading 8541, HTSUS, because Note 8 states that “headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature… which might cover them by reference to, in particular, their function.” Based on this language, Protestant argues that Note 8 operates to preclude the subject Rotoscan from being classified in any heading except heading 8541, HTSUS.
In response, we note that this clause must be read in the context of the entire legal note. Note 8 to Chapter 85, HTSUS, defines the terms “diodes, transistors and similar semiconductor devices” and “electronic integrated circuits” for the purposes of headings 8541 and 8542, HTSUS. It then stated, “For the classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature, except in the case of heading 8523, which might cover them by reference to, in particular, their function” (emphasis added). Thus, the stated preference for headings 8541 and 8542, HTSUS, in Note 8 is only for merchandise that fits the note’s definition of either “diodes, transistors and similar semiconductor devices” or “electronic integrated circuits.” The Rotoscan does not fit either of these definitions. As a result, it is not subject to the terms of Note 8, and is not required to be classified in heading 8541, HTSUS.
HOLDING:
By application of GRI 1, the subject AG4-4E Rotoscan Safety Laser Scanner is classified in heading 9031, HTSUS, and specifically in subheading 9031.49.90, HTSUS, which provides for “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.” The 2012 column one, general rate of duty is 3.5% ad valorem.
You are instructed to DENY the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, 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
Commercial and Trade Facilitation Division