HQ H014565

March 21, 2008

**CLA-2 OT: RR: CTF: TCM** H014565 RM

**CATEGORY:** Classification

**TARIFF NO.:** 9031.49.9000

Mr. Ross Lappin

Vice President, Manufacturing

Pacific Laser Systems

2550 Kerner Boulevard

San Rafael, California 94901

**RE:** Request for reconsideration of New York Ruling N009766, dated
April 26, 2007;

Classification of Laser Levels.

Dear Mr. Lappin:

This letter is in response to your request of June 11, 2007 for
reconsideration of New York Ruling Letter (NY) N009766. In that ruling,
U.S. Customs and Border Protection (CBP) determined that the subject
laser levels were classified under subheading 9031.49.90, Harmonized
Tariff Schedule of the United States (HTSUS). We have reviewed NY
N009766 and found it to be correct.

**FACTS:**

The subject articles are self-leveling laser alignment tools imported
from China. The principal use of these tools is to establish a level
reference plane against which measurement can be performed. The product
line consists of styles PLS2, PLS3 and PLS 180, which are referred to as
"pocket" laser tools because they fit inside a small pouch and can be
attached to a tool belt, and PLS 5, HVR 500, and HVR 100, which are
hand-held tools that are too large for a tool belt.

According to the description provided by the importer, each of the tools
utilizes one or more 635 nanometer laser diodes in their operation. The
collimated beam from the diode is directed through various mirrors,
splitters, cones, etc., to project a reference plane of energy in the
horizontal plane (level) or vertical plane (self levels to dead
vertical) with a line or spot. The two HVR products are standard
self-leveling rotators. They project a level spot that is rotated
creating a visual level laser line. All of these tools are equipped with
a tripod mount insert.

**ISSUE:**

Are the laser levels classifiable under subheading 9031.49.90, HTSUS,
which provides for "\[m\]easuring or checking instruments, appliances
and machines, not specified or included elsewhere in this
chapter;...:\[o\]ther optical instruments and appliances: \[o\]ther:
\[o\]ther\" or under subheading 9015.30.40, HTSUS, as "surveying
instruments (including photogrammetrical surveying)...:\[l\]evels:
\[e\]lectrical?"

**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, the
remaining GRIs 2 through 6 may then be applied in order. The HTSUS
provisions under consideration are as follows:

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:

90. Other...

9015 Surveying (including photogrammetrical surveying), hydrographic,
oceanographic, hydrological, meteorological or geophysical instruments
and appliances, excluding compasses; rangefinders; parts and accessories
thereof:

\* \* \*

30. Levels:

9015.30.40 Electrical...

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]{.underline} T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23,
1989).

At issue is whether the subject laser levels are identifiable as
electrical "surveying instruments" as understood by heading 9015, HTSUS.
The Court of International Trade (CIT) has adopted broad lexicographic
definitions of the word "survey" and "surveying instrument" in the past.
[See]{.underline} [Gehrig, Hoban & Co., Inc., v. United States, 61 Cust.
Ct. 344, 293 F. Supp. 433, 439 (Cust. Ct.
1968)](https://www.lexis.com/research/buttonTFLink?_m=1129ffcab8a5c18ef106802387e45c61&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B26 C.I.T. 352%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=37&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B293 F. Supp. 433%2C 439%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlz-zSkAk&_md5=717ce9885bca698666e867ce10b604e7);
[see also]{.underline} [Schlumberger Well Surveying Corp. v. United
States, 54 C.C.P.A. 37, 41
(1967)](https://www.lexis.com/research/buttonTFLink?_m=1129ffcab8a5c18ef106802387e45c61&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B26 C.I.T. 352%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=38&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B54 C.C.P.A. 37%2C 41%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlz-zSkAk&_md5=2c262e4645221125e20cd8eac5b73eed)
(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)](https://www.lexis.com/research/buttonTFLink?_m=1129ffcab8a5c18ef106802387e45c61&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B26 C.I.T. 352%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=39&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B41 Cust. Ct. 78%2C 81%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlz-zSkAk&_md5=5ffa2b248dd76bd47c6eab7791deaf9b)
(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]{.underline}, 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]{.underline}, Slip Op.
2007-92, dated June 6, 2007, a case also dealing with laser levels, the
CIT drew from three dictionary definitions of the terms "survey" and
"surveying" to interpret heading 9015, HTSUS. "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.\" Encyclopedia Americana (1953)
defines \"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." Finally, Webster\'s Third New
International Dictionary of the English Language (1981) (\"Webster\'s\")
defines "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) . . . .

In [Agatec]{.underline}, the CIT found that the similar electrical laser
levels were not "surveying instruments" and therefore not classified
under heading 9015, HTSUS. Principally, the Court noted that all three
dictionary definitions invoked "the earth's surface" as a benchmark for
the surveying measurements, whereas the laser levels being considered
"operated chiefly in a construction environment and \[were\] not
principally measuring positions relative to the earth's surface."[^1]
The CIT considered Webster's alternative definition of "survey" \--
which does not mention the earth's surface but requires instead "the
taking of linear and angular measurements and the application of
geometric and trigonometric principles" -- and found the laser levels to
be equally deficient. The laser levels in that case 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. Furthermore, the CIT found the laser levels to be
incapable of spatial measurement (they could not measure distance
without the help of a mounted receiver device), as required by all three
definitions.

The levels under consideration in this case are similar in design and
function to those described in [Agatec]{.underline}. First, like the
laser levels in [Agatec]{.underline}, the levels in question operate
chiefly in a construction environment and are not principally measuring
positions relative to the earth's surface. The laser levels' instruction
manuals and promotional catalogue clearly state that the levels are
designed for use by construction contractors for indoor and outdoor job
sites.[^2] You listed several applications for the tools in your request
for reconsideration letter, none of them dealing with measuring the
earth's surface. Second, the laser levels are incapable of spatial
measurement, as required by all the aforementioned dictionary
definitions of "survey"; the tools are limited to projecting level
reference planes (i.e., spots or lines). Third, like the level lasers in
[Agatec]{.underline}, the tools in question are limited to
one-dimensional measurement and cannot measure angles. Moreover, you did
not address how geometric or trigonometric principles may be applied to
the data obtained from the laser levels' measurements to determine and
delineate the position of objects. Thus, the common dictionary meanings
prevent a classification of the laser levels under heading 9015, HTSUS.

While it is true that the ENs to heading 9015, HTSUS, explicitly include
instruments used "in determining heights above or below some horizontal
reference level," those same ENs conclude with the following limitation:
"\[t\]his 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)." Thus, as noted by the CIT
in [Agatec]{.underline}, the ENs "set up a mutually exclusive set of
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." Accordingly, the ENs, while not
binding or dispositive, support the conclusion that the laser levels are
not classifiable under heading 9015, HTSUS.

We now turn to CBP's contention that the laser levels are classifiable
under heading 9031, HTSUS, which includes "\[m\]easuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter..." In [Agatec]{.underline}, the CIT explained
that "checking" is the present participle of "check," which Webster's
defines as "to inspect and ascertain the condition of, esp. in order to
determine if the condition is satisfactory" or "to investigate and
ensure accuracy, authenticity, reliability, safety, or satisfactory
performance of." Further, \"measuring," is the present participle of
\"measure,\" which Webster\'s defines as \"to lay off, mark, or fix (a
specified distance or extent) by making measurements\" or \"to appraise
in comparison with something taken as a criterion.\" The laser levels in
this case are optical instruments that aid in leveling, alignment,
plumbing, and squaring for building and construction projects. In
addition, they can project a vertical line. These functionalities are
consistent with Webster\'s definition of measuring and checking.

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 goods in question use visible laser beams to aid human
sight when leveling. They are therefore classifiable under heading 9031,
HTSUS.

**HOLDING:**

The subject laser levels are classified under subheading 9031.49.90,
HTSUS, which provides for: "\[m\]easuring or checking instruments,
appliances and machines, not specified or included elsewhere in this
chapter; profile projectors; parts and accessories thereof: \[o\]ther
optical instruments and appliances: \[o\]ther: \[o\]ther." The general,
column one rate of duty is 3.5 percent *ad valorem*.

Duty rates are provided for convenience only and are subject to change.
The text of the most recent HTSUS and the accompanying duty rates are
provided on the World Wide Web at www.usitc.gov/hts/tata/.

**EFFECT ON OTHER RULINGS:**

NY N009766, dated April 26, 2007 is hereby affirmed. NY N004894, dated
January 23, 2007 and NY 818367, dated January 31, 1996, and any other
ruling inconsistent with [Agatec Corp v. United States]{.underline},
CIT, Slip Op. 07-92, have been revoked by operation of law.

Sincerely,

> Myles B. Harmon, Director

Commercial and Trade Facilitation Division

[^1]: Use designations are made on the basis of a product's principal
    use. [See]{.underline} [Lenox Collections v. United
    States]{.underline}, 20 CIT 194 (1996). The record demonstrates that
    the laser levels considered in [Agatec]{.underline} were used
    primarily in construction work.

[^2]: The promotional literature to the PLS3 and PLS5 laser levels
    states: "designed by contractors, for contractors."