HQ 956012

March 30, 1994

CLA-2 CO:R:C:M 956012 MBR

CATEGORY: Classification

TARIFF NO.: 8521.90.00

Mr. Michael Mahone

Porter International Inc.

P.O. Box 81488

San Diego, CA 92138

RE: Kodak EktaPro HS Motion Analyzer; Model 4540; Television

Camera; HQ 089996; HQ 088044; HQ 086847; HQ 088336; Pfaff

American Sales Corp.; Ugg Int\'l, Inc.; Mita Copystar Corp.;

NEC America, Inc.; Corporacion Sublistatica, S.A.; Davis

Turner & Co.; Simmon Omega, Inc.; Trans-Atlantic Co.;

Ameliotex, Inc.; Esco Mfg. Co.;

Dear Mr. Mahone:

This is in reply to you letter of November 1, 1993, to the

Area Director of Customs, New York Seaport, on behalf of the Kodak

Corporation, requesting classification of the \"EktaPro HS Motion

Analyzer,\" model 4540, under the Harmonized Tariff Schedule of the

United States (HTSUS). You letter was forwarded to this office for

reply.

FACTS:

The Kodak EktaPro HS Motion Analyzer, model 4540 is an ultra

high-speed video recording system with the ability to record up to

4,500 full frames per second and up to 40,500 pictures per second

for immediate playback. These speeds allow analysis and image

storage of extremely rapid events such as air bag deployment and

ballistics studies. This system uses solid state memory which

eliminates the need for magnetic tape. Once captured by the

analyzer, the stored images can be downloaded to standard video

tape for future reference and analysis.

The EktaPro has the ability to depict motion in replay mode

at the following fixed rates (frames per second): 2, 5, 10, 15, 30

(or X 10, i.e., 20, 50, 100, 150, 300).

The internal sensor element is a 256 X 256 charge coupled

device (\"CCD\") with 256 levels of gray. CCDs are semiconductors

which contain a grid of numerous photosensitive cells, or pixels.

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As the image-forming light of an object is focused onto the grid,

each pixel receives a certain quantity of light which is translated

into an electrical charge. The result is a pattern of electrical

charges which represents an image. The EktaPro system consists of

the following components: 1) HS-4540 processor (system controller),

2\) HS-4540 imager (camera), 3) HS-4540 Keypad (user interface),

Imager cables (image connector).

ISSUE:

What is the classification of the \"Kodak EktaPro HS Motion

Analyzer, Model 4540,\" under the Harmonized Tariff Schedule of the

United States (HTSUS)?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI\'s) to the HTSUS

govern the classification of goods in the tariff schedule. GRI 1

states, in pertinent part:

\...classification shall be determined according to the terms

of the headings and any relative section or chapter notes\...

You argue that classification is appropriate under heading

8521, HTSUS. Heading 8521, HTSUS, provides for: \"\[v\]ideo recording

or reproducing apparatus.\" The Harmonized Commodity Description

and Coding System Explanatory Notes (\"ENs\"), which provide

classification guidance for the HTS, regarding heading 85.21, page

1370, state as follows:

\(A\) Recording and Combined Recording

and Reproducing Apparatus

In television image and sound recording apparatus

electric impulses (signals) which correspond to the images and

the sound are recorded on media, generally consisting of

magnetic tape. Generally the sound accompanying the image is

recorded simultaneously on the same media, on one or several

different tracks from that carrying the video recording. The

signals can be obtained by connecting the recorder either to

a television camera or to a television receiver.

When used for reproduction, the apparatus convert the

recording (e.g., the magnetic patterns on the tape) into video

signals. These signals are passed on either to a transmitting

station or to a television receiver.

See Pfaff American Sales Corp. v. United States, Slip Op. 93-

101 (June 14, 1993) \"The court first examines the relevance of the

Explanatory Notes in determining the meaning of the term\.... In

so doing, the court recognizes that the Explanatory Notes do not

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constitute controlling legislative history. Rather, their purpose

is to offer guidance in interpreting HTSUS subheadings.\" Ugg

Int\'l, Inc. v. United States, 17 CIT \_\_, 813 F. Supp. 848, 853

(1993); Mita Copystar Corp. v. United States, No. 93-76 (CIT May

20, 1993).

You state that the instant video recording device was designed

to use random access memory (\"RAM\") in order to store the video

images, instead of magnetic tape, because even high speed magnetic

tape was not able to accurately record the high volume of images

that the HS-4540 system provides (up to 4,500 full frames per

second). Therefore, this is a technological advancement over the

prior more common magnetic tape recording video machines.

The court has stated that \"\[i\]t must also be remembered that

the tariff statutes were enacted \'not only for the present but also

for the future, thereby embracing articles produced by technologies

which may not have been employed or known to commerce at the time

of the enactment \* \* \*.\'\" NEC America, Inc. v. United States, 8 CIT

184, 186 (1984), citing Corporacion Sublistatica, S.A. v. United

States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also

Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669

(1957). See also Simmon Omega, Inc. v. United States, 83 Cust. Ct.

14, C.D. 4815 (1979), and Trans-Atlantic Co. v. United States, 471

F. 2d 1397, 60 CCPA 100, C.A.D. 1088 (1973), in which the courts

have held that technological advancements and \"improvement in the

design of an article does not militate against its continuing to

be a form of the named articles.\"

In HQ 088044, dated April 4, 1991, Customs held that a read

only memory (\"ROM\") cartridge which reproduced the entire text of

a book in audio form was classifiable in subheading 8519.99.00,

HTSUS, which provides for: \"\[t\]urntables, record players, cassette

players and other sound reproducing apparatus, not incorporating

a sound recording device: \[o\]ther sound reproducing apparatus:

\[o\]ther.\" Therefore, a ROM chip was found classifiable as

\"reproducing apparatus.\"

Similarly, the EktaPro HS-4540 motion analyzer is classifiable

in heading 8521, HTSUS, which provides for video recording or

reproducing apparatus, whether or not incorporating a video tuner.

The EktaPro is merely a technological advancement over the prior

magnetic tape video recording machines.

Furthermore, it is commonly and commercially known as a high

speed video recording system. The court has stated that \"\[t\]he

tariff schedules are written in the language of commerce, and the

terms used are to be given their commercial or common meaning.\"

See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200,

565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA

71, 73 C.A.D. 1167, 530 F.2d 949, 951 (1976).

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Consideration was also given to whether HQ 089996, dated

October 23, 1991, regarding the classification of an electronic

module which made repetitive animal sounds upon command, should be

controlling for the subject goods. However, in that decision we

distinguished the electronic animal noise module from the reading

tray ROM cartridges of HQ 088044, when we stated: \"The electronic

module in question uses fixed integrated circuits which are

designed to perform the same function over and over that of

reproducing the sound of the object chosen by the reader.\"

Therefore, the limited capability of the electronic module was

found not to be within the purview of the heading \"other sound

reproducing apparatus.\" Similarly, other novelty articles which

incorporate limited use integrated circuits (such as greeting

cards, Christmas ornaments, hats, etc.) are also not classifiable

as sound reproducing apparatus. See for example, HQ 081831, dated

May 17, 1989, and HQ 081966, dated November 18, 1988.

Heading 9006, HTSUS, provides for: \"\[p\]hotographic (other than

cinematographic) cameras.\" However, in HQ 086847, dated April 20,

1990, and HQ 088336, dated August 20, 1991, Customs held that:

In addition to the guidance provided by the HTSUSA\'s

classification of electrical articles, there is lexicographic

authority for the position that electronic devices which use

CCD\'s are distinguished from photographic articles. The

McGraw Hill Encyclopedia of Science and Technology, Vol. 3,

p\. 168, provides:

Electronic camera. Advances in the field of

solid-state electronics have made possible

the development of the electronic still camera.

Unlike photographic cameras, in which film senses

and records the image-forming light, the electronic

still camera uses a solid-state image sensor to

sense the image-forming light and a separate recording

medium to record and store the picture. (Emphasisadded).

In our opinion an electronic still video camera which

uses a charge coupled device and records electrical

representations of images on magnetic discs principally

functions as an electrical apparatus and not as a photographic

apparatus. Thus, still video cameras are not classifiable as

photographic cameras in Heading 9006.

Similarly, for the same reasons, video cameras such as that

encompassed in the \"EktaPro\" system are not classifiable in heading

9006, HTSUS, as photographic cameras. Furthermore, we are not

convinced that when the court defined \"photography\" in St. Regis

v\. United States, 11 CIT 601 (1987), that it intended a solid-

state image sensor to be encompassed within the term \"sensitized

surface.\"

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The EktaPro system consists of the following components: 1)

HS-4540 processor (system controller), 2) HS-4540 imager (camera),

3\) HS-4540 Keypad (user interface), Imager cables (image

connector). The Legal Note 4 to Section XVI provides the following

classification guidance regarding functional units, such as the

instant system:

Where a machine (including a combination of machines) consists

of individual components (whether separate or interconnected

by piping, by transmission devices, by electric cables or by

other devices) intended to contribute together to a clearly

defined function covered by one of the headings in chapter 84

or chapter 85, then the whole falls to be classified in the

heading appropriate to that function.

The EktaPro is a group of machines, interconnected by cables,

intended to contribute to the clearly defined function of video

recording or reproducing apparatus. Therefore, the system is

properly classifiable in subheading 8521.90.00, HTSUS, which

provides for: \"\[v\]ideo recording or reproducing apparatus, whether

or not incorporating a video tuner: \[o\]ther.\"

HOLDING:

The \"Kodak EktaPro HS Motion Analyzer, Model 4540\" is

classifiable in subheading 8521.90.00, HTSUS, which provides for:

\"\[v\]ideo recording or reproducing apparatus, whether or not

incorporating a video tuner: \[o\]ther.\" The rate of duty is 3.7%

ad valorem.

Sincerely,

John Durant, Director