CLA-2 OT:RR:CTF:TCM HQ H218087 TNA
Port Director, Port of Chicago
U.S. Customs and Border Protection
5600 Pearl Street Rosemont, IL 60018
Attn: James Schultz, Senior Import Specialist
RE: Internal Advice Request 12/019; classification of rotating laser levels and pipe laser levels
Dear Port Director:
This is in response to your letter, dated April 24, 2012, forwarding with comments the Request for Internal Advice submitted by Topcon Positioning Systems (“Topcon” or “Requester”), on March 16, 2012, concerning the proper classification of laser levels under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of rotating laser levels and pipe laser levels. These are self-leveling devices that are mounted on tripods and contain laser beams that extend over 2600 feet. They also have compensators that allow for elevation measurement over long distances and are weighted in order to enhance stability and accuracy. These levels are used to measure elevation in determining and executing cut and fill plans on large, civil engineering construction projects. The subject laser levels are sold through specialized distributors and are marketed to civil engineers and surveyors.
Some of the subject rotating laser levels can produce vertical and/or sloping planes in addition to the standard horizontal plane. In addition to differential leveling, rotating laser levels can be used to control flatness/verticality and in machine guidance and control. The subject pipe lasers levels, which are fixed-beam alignment lasers, are commonly used for controlling pipe laying.
In requesting this Internal Advice, Topcon argues for classification of the subject merchandise as “surveying (including photogrammetrical surveying)… instruments and appliances” of heading 9015, HTSUS. The port takes the position that the subject laser levels are classified in heading 9031, HTSUS, as “measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter.”
Lastly, we note that Topcon’s Request for Internal Advice through the Port of Chicago included a request for classification advice on its automatic and digital levels. However, the entries at issue at the Port of Chicago only include importations of the rotating laser levels and pipe laser levels, and these are the only Topcon levels with which the Port of Chicago has disagreed with the entered classification. Furthermore, Topcon has been advised by the Port of Chicago on several occasions that there is no dispute as to the classification of its automatic and digital levels, because the Port agrees with the classification for which Topcon advocates with respect to the automatic or digital levels. As a result, those levels are ineligible for inclusion in a Request for Internal Advice. See 19 C.F.R. 177.11(b)(2) (“Internal advice will be sought by a Customs Service field office with respect to a current transaction for which no ruling was requested or issued under the provisions of this part whenever a difference of opinion exists as to the interpretation or proper application of the Customs and related laws to the transaction.”) Topcon may request internal advice from another port where such disagreement exists. Furthermore, while there are prior CBP rulings on substantially similar laser levels, Topcon itself has not received such a ruling. As a result, it may request a binding ruling on all prospective transactions. See 19 C.F.R. 177.2.
ISSUE:
Whether the subject rotating laser levels and pipe laser levels are classified as surveying instruments of heading 9015, HTSUS, or in heading 9031, HTSUS, as “measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter”?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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, GRIs 2 through 6 may then be applied in order.
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:
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs 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, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to heading 9015, HTSUS, provides, in pertinent part:
(I) INSTRUMENTS AND APPLIANCES USED IN GEODESY, TOPOGRAPHY, SURVEYING OR LEVELLING
These are generally intended for use in the field, for example, in cartography (land or hydrographic maps); in the preparation of plans; for triangulation measurements; for calculating the area of a piece of land; in determining heights above or below some horizontal reference level; and for all similar measurements in constructional work (building roads, dams, bridges, etc.), in mining, in military operations, etc.
This group includes:…
(2) Optical levels (spirit, autoset, telescopic, collimator, laser, etc.), generally used mounted on a tripod….
This heading does not cover:…
(d) Levels (air bubble type, etc.) used in building or constructional work (e.g., by masons, carpenters or mechanics), and plumb lines (heading 90.31).
The EN to heading 9031, HTSUS, provides, in pertinent part:
In addition to profile projectors, this heading covers measuring or checking instruments, appliances and machines, whether or not optical. It should, however, be noted that this group does not include any instruments, apparatus, etc., falling in headings 90.01 to 90.12 or 90.15 to 90.30; in particular, the following are therefore excluded: ….
(c) Surveying, etc., instruments and appliances of heading 90.15…
Subheading Explanatory Note.
Subheading 9031.49
This subheading covers not only instruments and appliances which provide a direct aid or enhancement to human vision, but also other instruments and apparatus which function through the use of optical elements or processes.
At issue is whether the subject rotating laser levels and pipe laser levels are identifiable as “surveying instruments” of heading 9015, HTSUS. Courts have adopted broad lexicographic definitions of the terms “survey” and “surveying instruments.” See Gehrig, Hoban & Co., Inc., v. United States, 61 Cust. Ct. 344, 293 F. Supp. 433, 439 (Cust. Ct. 1968); see also Schlumberger Well Surveying Corp. v. United States, 54 C.C.P.A. 37, 41 (1967) (holding that cartridges designed to determine the dip of subsurface formations for oil exploration are surveying devices); R.W. Smith v. United States, 41 Cust. Ct. 78, 81-82 (1958) (holding that deviation recorders and parts used to measure the angle and the direction from the vertical of an oil well hole are surveying devices); Heli-Support, Inc. v. United States, 26 CIT 352 (2002) (holding that the plaintiff’s interpretation of heading 9015, HTSUS, to include only instruments “used in the practice and science of surveying by a surveyor” was incorrect).
Most recently, in Agatec Corp. v. United States, 31 C.I.T. 847 (2007), the CIT classified laser levels. There, the court applied the three dictionary definitions of the terms “survey” and “surveying” that had been used in Heli-Support to interpret heading 9015, HTSUS. Agatec, 31 C.I.T. 852-853. Under these definitions, “surveying,” according to the Columbia Encyclopedia (2d ed. 1950), is defined as “the science of finding the relative position on or near the earth's surface. Boundaries, areas, elevations, construction lines, and geographical or artificial features are determined by the measurement of horizontal and vertical distances and angles and by computations based in part on the principles of geometry and trigonometry.” Id. at 852-853. Encyclopedia Americana (1953) defined “surveying” as:
the science of determining the positions of points on the earth's surface for the purpose of making there from a graphic representation of the area. By the term earth's surface is meant all of the earth that can be explored -- the bottoms of seas and rivers, and the interior of mines, as well as the more accessible portions. It includes the measurement of distances and angles and the determination of elevations.
Id. at 853. Lastly, Webster's Third New International Dictionary of the English Language (1981) (“Webster's”) defined “surveying” as:
1. Survey: . . . 2: to determine and delineate the form, extent, and position of (as a tract of land, a coast, or a harbor) by taking linear and angular measurements and by applying the principles of geometry and trigonometry . . . . 2. Survey: . . . 3a: the process of surveying an area of land or water: the operation of finding and delineating the contour, dimensions, and position of any part of the earth's surface whether land or water (a topographic and hydrographic, of a locality)…
Id. at 853.
In analyzing whether the laser levels at issue could be considered “surveying instruments” of heading 9015, the Agatec court found that not only did it have to apply the above-cited dictionary definitions, but also that it had to consider the principal use of the levels at issue. Id. at 853. The court noted that all three dictionary definitions invoked “the earth’s surface” as a benchmark for the surveying measurements. By contrast, the laser levels at issue “operated chiefly in a construction environment and [were] not principally measuring positions relative to the earth’s surface.” Id. at 853-854. The court also considered Webster’s alternative definition of “survey,” which did not mention the earth’s surface but instead required “the taking of linear and angular measurements and the application of geometric and trigonometric principles.” Even applying this definition, however, the court found the laser levels at issue to be deficient because they were limited to measurement in one dimension, and no evidence was produced to show how geometric or trigonometric principles may be applied to the tool’s measurements. Id. at 855. Furthermore, the CIT found the laser levels to be incapable of spatial measurement, as required by all three definitions, because they could not measure distance without the help of a mounted receiver device. Id. at 854-855.
Lastly, both parties in Agatec cited the ENs to heading 9015, HTSUS, in support of their arguments. The ENs expressly state that the heading does not cover “[l]evels (air bubble type, etc.) used in building or constructional work (e.g., by masons, carpenters or mechanics), and plumb-lines (heading 90.31).” Agatec argued that this exclusion covered air bubble levels only. The court disagreed, and noted that the ENs set up mutually exclusive categories: (1) instruments used in determining heights above or below a horizontal reference level and (2) instruments that are levels used in building or constructional work. Id. at 855-856. The court, noting that the laser levels at issue fit both descriptions, stated that the products’ principal use- that of use in construction- controlled. Thus, the court found that the ENs supported the court’s conclusion that the common dictionary meanings prevented the laser levels’ classification in heading 9015, HTSUS. Id. at 856.
In the present case, the subject rotating laser levels and pipe laser levels’ principal use is in large construction projects. They are used to measure horizontal and vertical planes to determine straight lines. They do not measure positions relative to the Earth’s surface. They also measure in one direction, without resort to geometric or trigonometric principles. As such, the subject merchandise does not meet the definition of “surveying instruments” set forth in Agatec, Gehrig, Hoban & Co., Schlumberger, R.W. Smith or Heli-Support, Inc. As a result, we find that the subject levels are precluded from classification as surveying instruments of heading 9015, HTSUS. This conclusion is consistent not only with Agatec but also with prior CBP rulings issued after Agatec and applying Agatec’s definitions to laser levels similar to the subject merchandise. See, e.g., HQ H014565, dated March 21, 2008; HQ H021136, dated October 3, 2008.
Topcon acknowledges that its merchandise is used primarily in large construction projects, as was true in Agatec. Topcon also acknowledges that the Agatec court defined “surveying” in such a way that excludes the subject merchandise. The company also makes the same arguments about EN 90.15 excluding bubble levels only, which the Agatec court dismissed. However, Topcon distinguishes Agatec by arguing that the court, in coming to its definition, relied on lexicographic sources that are decades old and no longer relevant. Topcon argues that the industry has changed in the time since those sources were published, and that more recent versions of the same sources have been updated with definitions that encompass the subject merchandise.
We recognize that the Agatec court relied on older sources to determine the definition of the term “surveying” as it appears in heading 9015, HTSUS. However, CBP is not at liberty to second guess the court’s analysis. It is a well-established principle that tariff classification cases decided by the Court of International Trade and the Federal Circuit are binding on CBP for reasons of consistency and fostering reliance on prior decisions. See Wilton Indus. v. United States, 31 C.I.T. 863, 880-882 (1983).
Because the subject merchandise is precluded from classification in heading 9015, HTSUS, we examine alternate headings. 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”).
Furthermore, the court 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. In addition, 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; HQ H163998, dated May 15, 2012.
Here, the subject rotating laser levels and pipe laser levels are optical instruments that aid in leveling, alignment, and determining grade and slope for construction projects. As such, they measure and check grade and slope. These functionalities are consistent with the definitions of measuring and checking cited above. As a result, the subject merchandise is described by the terms of heading 9031, HTSUS. Moreover, the EN to subheading 9031.49, HTSUS, provides that “[t]his subheading covers not only instruments and appliances which provide a direct aid or enhancement to human vision, but also other instruments and apparatus which function through the use of optical elements or processes.” The subject levels use visible laser beams that are mounted on tripods and extend over 2600 feet in order to determine whether a straight line is formed. As such, they are instruments or apparatus which function through the use of optical elements. As a result, they are described by the terms of subheading 9031.49, HTSUS. This classification is also consistent with prior court cases and CBP rulings. See Agatec, 31 C.I.T. 847; HQ H014565; HQ H021136.
HOLDING:
By application of GRI 1, the rotating laser levels and pipe laser levels are classified in heading 9031, HTSUS. They are specifically provided for in subheading 9031.49.90, HTSUS, which provides in pertinent part 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 applicable duty rate is 3.5% ad valorem.
You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on CBP’s website, located 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