### Slip Op. 02- 28

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________ : HELI -SUPPORT, INC. AND : AEROTEC, INC., : : Plaintiff, :

: v. : Court No. 99-10-00636

: UNI TED STATE S, : : Defend ant. : ____________________________________: [Motion for summary judgment upholding Customs’ tariff classification granted.] Dated: March 13 th , 2002 Peter Herrick, Esq. for plaintiffs Heli-Support, Inc. and A erotec, Inc. Robert D. McCallum, Jr. , Assistant Attorney Gene ral, Joseph I. Liebman , Attorne y in Charge, Inte

rnational Trade Field Office, Barba ra M. Epst

ein , Civil Division, United States Department of Justice, Commercial Litigation B ranch, Chi Choy, Esq. , Office of Assistant Chief Counsel, I

nternat ional Tra de Li tigation , United Sta

tes Customs

Service , for def

endant.



### OPINI ON RESTANI, Judge: This customs classification action is before the court on Defenda nt’s motion for summary judgme nt. USCIT Rule 56. Defendant, the United States, moves for summary judgmen t again st plaintif

fs, Heli- Support, I

nc. and A erotec , Inc . (colle ctively“HeliSupport”) , on the g

rounds tha

t the Unite d States Cus toms Servic e (“Custo ms”) pro perly classified Heli-Support’s merchandise upon entry from Sweden in 1997.C OURT NO . 99-10-00636 PAGE 2

1 Heli-Supp ort is the i

mporter o f recor

d in this ca se, while

Aerotec is the ultima

te consignee of the

product i n question . Both pla

intiffs wi ll be ref

erred t o collec tively

as “Heli

Support” in this opinion. Jurisdiction This cour

t has juris diction pu

rsuant to 28 U.S.C. § 1 581(a) t

o hear a ppeals f rom denia

ls of classification protests. Werner & Pfleiderer Corp. v. United States , 17 CIT 916, 917 (1993).
Background Heli-Support imported the product in question, the Saab TopEy e AE and Ground Reference Sy stem (“TopEye ”), into the United States from Sweden in 1997. 1 The TopE ye is a high precision sy stem used for measuring topography

. See Technical Description , Saab TopEye, available at

http://www.combitech.se/survey/topey e/index.html (last visited March 13, 2002) (herei nafter “Techn ical Des cription” ). The To pEy e uses a s

pecialize d laser c amera that is mounted to

the under

carria ge of a ny s tandard

helicopt er or fixe d wing a

ircraf t to gene rate topographical images. See id. at 1. The TopEy e is attac hed to a he licopter

or airc raft so th at it may photogr

aph various landscapes from above and, fr om those pictures, produce maps. Id . at 4. The images are produced by emitting a laser pulse, which is then directed by a set of mirrors to reflect off of a given obje ct. Id

. at 5. That reflection, in turn, is captured by a light collector; the time required for the light to travel fr om the laser, to the object, and back to the collector is measured and divided by the speed of light to calculate distances. See Defendant’s Statement of Material Facts Not in I ssue, No. 11. Simultaneously, the TopEy e uses two video cameras to record overhea d images, as well as images containe d in a field of view larger than the laser scanning width. Technical Description at 4. These cameras are alig ned with the laser scanner to allow sy

nchronization with the captured terrain data. Id. The combination of theC OURT NO . 99-10-00636 PAGE 3

2 Plaintiff

agree s that the T opEy

e is compo sed of opt

ical ele ments use d to crea

te topographical images. See Pl.’s Statement of Material Facts, at 1-2. Plaintiff, therefore, doe s not dispute the basic functions or components of the TopEy e itself. Instead, Plaintiff disputes the sc op e o f “ su rv eyi ng de vi ce s” un de r t he HT SU S. Pl ai nt if f a rg ue s t ha t, ev en th ou gh th e T op Eye uses cameras, mirrors, and lasers to cre ate digital images, the TopEy e is “not a survey

instrument to be used in the practice of the science of sur veying ” by “surve

yors.” See id. at ¶¶ 18, 20. Plaintiff ’s arg ument is, th erefor

e, a leg al one an

d proper ly d ecided on summary

judgmen t. laser-generated a

nd video images can be used to crea te highly de

tailed, large-scale maps in near real time. See id. The parties do not dispute the essential components and functions of the TopEye. 2 Upon import, Customs classified the TopEye as a “surveying

instrument” under subheading 9015.80.20 of the Harmonized Tariff Schedule of the United States (1997) (“HTSUS”) and, accordingly , imposed a 3.9% ad valorem duty. Heli-Support claims that the TopEye should have be en classified as a “measuring or c hecking instrument” under HTSUS 9031.80.00, and as such, should have entered the United States duty -free.

Standard of Review The court shall grant Defendant’ s motion for summary judgment if no g enuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See US CIT Rule 56(d). The relevant facts are not in dispute. The only issue is the scope of the HTSUS provisions with respect to this product, which may be determined as a matter of law. See E.M. Chem. v. United States , 920 F.2d 910, 912 (Fed. Cir. 1990).

Discussion Under Rule 1 of the General Rules of the I nterpretation (“GRI” ) of the Harmonized Tariff Schedule , “a cou

rt first c onstrues

the lang uage o f the hea

ding, a nd any section o r chapte

r notes inC OURT NO . 99-10-00636 PAGE 4

3 Heli-Support withdrew its initial argument that the TopEy e should have been classified under HTSUS 8803.30.00 as a “helicopter part.” See Plaintiff’s Response Brief at 2. The court notes that this claim would have failed pursuant to note 2(g) of HTSUS § XVI I, because that note excludes “parts and accessories” of Chapter 90 from classification under § XVI I and, therefore, under Chapter 88 by incorporation.

4 HTSUS 9031 .80.00 re ads as fo llows: 9031 Measuring or checking instruments, applianc es and machines, not specified or included elsewhere in this chapter

... Id. (emphasis added)

5 HTSUS 9015 .80.20 pr

ovides: 9015 Surveying ( including photogrammetrical survey ing), hydr ographic, oceanographic, hy

drological, meteorological or g eophysical instruments and appliances, excluding compasses; rangef inders, parts and accessories thereof : 9015.80 Other ins truments a nd applia nces: question, to determine whether the product at issue is classifiable under the he ading. Only after determining that a product is classifiable under the hea ding should the court look to the subheadings to find the correct classification for the merc handise.” Orlando Food Corp. v. United States , 140 F.3d 1437, 1440 (Fed. Cir. 1998). I n reviewing Customs’ classification here, the court must first determine whether the TopEy e can generally

be classified as a “survey ing device” under heading 9015. I n doing so, the court looks to whether the TopEy e is, as Plaintiff suggests, more appropriately classified under heading 9031 as a “me asuring or checking instrument.” 3 Heading 9031 states that it may be invoked only when the item in question is not specified elsewhere in chapter 90. 4 Theref ore, if th e court d

etermine s that the T opEy e is prope rly classified under heading 9015 as a surve ying de vice, the TopEye

cannot be classified under heading 9031 as a

checkin g instru ment. I f the cou

rt finds th at the Top Eye

is classif iable as a surveying device, the court must then determine whether it should be classified unde r the “optical instrument” subheading. See HTSUS 9015.80.20. 5 The primary inquiry , therefore, is whetherC OURT NO . 99-10-00636 PAGE 5

9015.80.20 Optical instruments and appliances... Customs properly classified the TopEy e as a survey

ing device.
A. Surveying Device Surveying de

vices are broadly

defined to include instruments of modern technology that carry out special types of surve ying, be yond mere surf

ace examinations. See Gehrig, Hoban & Co., Inc., v. United States , 293 F. Su pp. 433, 43 9 (Cust. Ct. 1968); see also Schlumber ger Wel l Surveying Corp. v. U

nited States , 54 CCPA 37, 4 1 (1967) ( holding t hat car tridge s designe d to determ ine th e dip o f subs urface forma tion s for o il ex plora tion are sur veying devices ); R.W. Smith v. United States , 41 Cust. Ct. 78, 81-82 (1958) (holding that devi ation re corder s and par ts used to measure the angle and the dire ction from the vertical of an oil well hole are survey ing devices )

. These cases have adopted broad lexicog raphic definitions of the word “survey ” and “surveying

instrument.” For example, the court in R.W. Smith referred to the definition of “surveying ” in Columbia En cyclopedia

(2d ed . 1950 ), sta ting: surveying , the science of finding the relative position on or nea r the earth’s surface. Boundar ies, areas, elevations, construction lines, and geographical or a rtificial features are determined by the measurement of horizontal and vertical distances and angles and by computations based in part on the pr inciples of geometry

and trigonometry . *** Branches of survey ing are named according to the pur pose of su

rvey s, e.g. , topogr

aphic sur vey ing, use d to determ ine rel ief (s ee CONT OUR), route surve ying, min e surv eying, const ructi on sur veying, or accord ing to the me thod used, e.g. transit surveying , plane-table survey ing, photogrammetic survey ing (securing data by

photographs). Survey s based on photographs are especially

useful in rugged or inacc essible country and f or reconnaissance survey

s for construction, mapping, or military purposes .C OURT NO . 99-10-00636 PAGE 6

R.W. Smith

at 1921. R.W. Smith

also referred to the definition of “survey ing” in the Encyclopedia

Americana , Volume 26 (1953):

SURVEYI

NG, the sc ience of

determin ing the p ositions of

points on the earth’s surface for the purpose of making therefrom a graph ic repr esentat ion of the area. B y th e term ea

rth’s sur face is meant all of the earth that can be explored–the bottoms of seas and rivers, and the in

terior of mines, as well as th e more a

ccessib le portions. It includes the measurement of distanc es and angles and the de

terminat ion of ele vations. R.W. Smith

at 91. In addition, Webs ter’s Third New Inter natio nal Di ction ary of the E nglis h Language (1981) de fines “s

urvey ” as follows: 1- Survey: 1a: to look over or examine with reference to condition, situation, or value: examine and ascertain the state of: Appraise, Estimate, Evaluate...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 geomet ry and tri gonom etry 3a: t o view from o r as if from a high place or a commanding position: take an inclusive or overa ll view of; consider or study c omprehensively: examine the whole e xtent 2- Survey: ...3a: the proc ess of surveying an area of land or water: the oper ation of f inding a nd deline ating th e contour , dimensio ns, and position of any part of the earth’s surface whether la nd or water (a topographic and hy drographic, of a locality

) b: a measured plan, a descr ipti on of a porti on of a n area o r of a ro ad or l ine th rough an area obtained by

surveying

... Heli-Support ignores these definitions and argue s that the TopEye is not a surve ying instrument because it is not an instrument used in the practice and science of surveying

by a survey

or. The court notes, however, that TopEy e’s own marketing literature descr ibes it as a surveying

device, as does the technical description of the product on the SAAB w ebsite.C OURT NO . 99-10-00636 PAGE 7

6 Harmonized Tariff Schedule General Rules of I nterpretation: Classific ation of g oods in the schedule shall be g overned

by t he follow ing prin ciples: 3. When, by application of rule 2( b) or for any

other reason, goods are, prima fa cie , classifi able unde

r two or mo re head

ings, cl assifica

tion shall b e effe cted as f ollows: (a) The heading which provides the most specific desc ription shall be preferred to heading providing a more general descr

iption.... There is no question that the primary function of the TopEye

is to record topographical images. The TopEy

e would, under any

of the above definitions, be considered a survey ing device. “[A]bsent c ontrary legisla tive inten t, HTSUS te

rms are t o be cons trued ac cording

to their common and commercial meanings, which are presumed to be the same.” Carl Zeiss, Inc. v. United States , 195 F.3d 1375, 1379 (Fed. Cir. 1999). Upon review of the its components and functions, the court finds that the TopEy e is properly c lassified as a survey ing device. Plaintiff argues that the TopEy e is more appropriately

classified as a checking or measurin g instru ment unde

r headin g 9031. G

RI Rule 3(a) sta tes that if goods a re clas sifiable under tw o or more

heading s, classif

ication mu st be eff

ected un der the provision w

ith the most specific description. 6 The cour t has alre ady

determined that th e TopEy e is class ifiable a s a surveying device. See discussion supra . Because heading 9031, by its own prohibition, cannot apply to items otherwise classifie d under the same chapter, the court nee d not determine which heading is more specific. The court notes, however, that heading 9015, w hich reads “survey

ing (including photogrammetrical survey ing), hydr ographic, oceanogr

aphic, hydrological, meteorological or geophy sical instruments and appliances, excluding compasses; range finders; parts and accessories thereof” is, on its face, mor e specific than heading 9031, which re ads: “measuring or checkin g instru ments, ap pliance s and mac

hines, not specifie d or inclu

ded else where in thisC OURT NO . 99-10-00636 PAGE 8

7 Mirrors have been held to be “optical elements”. See , e.g. , Celestaire, 120 F.3d at 1233 (qualify ing a “s plit-imag e mirror

” as an “ optical e lement”) ; Engis Equip. Co. v. United States , 62 Cust. Ct. 29, 294 F. Supp. 964, 967 (1969) (considering a mirror an optical element in an autocollimator). chapter; profile projectors; parts and acc essories thereof.” In analy zing specificity, the c ourt may only compare “

the language of the hea

dings and not the language of the subheadings.” Orlando Food Corp. , at 1440. Under the “rule of relative specif icity,” the court would look “to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree

of accuracy

and certainty .” Orlando Food Corp. , at 1441. To the extent necessary , the court finds that the description and requirements of heading 9015 are more specific than those of heading 9031. Finding that the TopEye is classifia ble as a survey

ing devic e, the court turns to whe ther i t sho uld b e class ified under the op tical inst rumen t sub headi ng. B. Optical I nstrume nt In de termining whether the TopEy

e is an opt

ical instr ument unde

r HTSUS 9015.80.20 , the court must determine: 1) whether the device ac ts on or interacts with light; 2) whether the device permits or enhances human vision through the use of one or more optical elements; and 3) whether the device uses the optical properties of the device in something more than a “subsidiary” c apacity. See United States v. Ataka Am., Inc. , 64 CCPA 60, 66, 550 F.2d 33, 37 (1977); see also Celestaire, Inc. v. United States , 120 F.3d 1232, 1233 (Fed. Cir. 1997). There is no questio n that the

TopEy e “acts on or inte

racts wi th light, ” in that it

project s a laser - a light beam - onto land in order to measur e distances. The TopEy

e “enhances human vi si on ” b ec au se th e d ev ic e e mp lo ys c am er as an d m ir ro rs to pr od uc e i ma ge s t ha t t he hu ma n e ye would not otherwise be able to detect with any sort of accuracy

or speed. 7 Heli-Support focusesC OURT NO . 99-10-00636 PAGE 9

its object ion on the t

hird req uiremen t, argu ing that the TopEy

e’s cam eras an

d mirrors are mer ely subsidiar y op tical ele

ments and , conseq

uently , do not use

light in th e way

the term “ optics” is used in the

tariff s chedule . This arg ument ig nores the integr al natur e of those componen

ts in producing TopEy

e’s imagery . The core purpose of the TopEy e is to create images through the use of spe cialized o

ptical te chnolog

y. A ccordin

gly , the TopE

ye satisfie s this “opti cal ele

ment” portion of the “sur vey ing device” te st.

Conclusion The TopEye me ets the HTSUS 9015.80.20 requirement of being both a survey ing device and an optical instrument. The court finds that Customs correctly classified the TopEye

under that provision and, theref ore, summ ary

judgmen t must be en

tered in favor of the Unite d States.

_______________________ Jane A. Restani JUDGE

Dated: New York, New York This 13 th day of Mar

ch, 2002.