Slip Op. 07-92
UNITED STATES COURT OF INTERNATIONAL TRADE
AGATEC CORP.,
Plaintiff, Before: Richard W. Goldberg,
Senior Judge
v.
UNITED STATES, Court No. 03-00165
Defendant.
OPINION
[Plaintiff’s motion for summary judgment is denied, and
defendant’s motion for summary judgment is granted.]
Dated: June 6, 2007
Weiss Berzowski Brady LLP (Barry R. White) for Plaintiff Agatec
Corp.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director Barbara S. Williams, Attorney-in-Charge, International
Trade Field Office, Commercial Litigation Branch, Civil Division,
United States Department of Justice (James A. Curley); Su-Jin
Yoo, Office of Assistant Chief Counsel, Bureau of Customs and
Border Protection, United States Department of Homeland Security,
of counsel, for Defendant United States.
Goldberg, Senior Judge: This is a classification case brought by
plaintiff Agatec Corp., a distributor of electrical levels and
accessories manufactured by Agatec France, against defendant U.S.
Customs and Border Protection (“Customs”). Before the Court are
the parties’ cross-motions for summary judgment under USCIT Rule
56.
Court No. 03-00165 Page 2
I. BACKGROUND
On February 6, 2002, Agatec imported a shipment of two
varieties of electrical laser levels, the A410S and the GAT120,
along with several accessories. In its import documentation,
Agatec classified the merchandise under subheading 9015.30.4000
of the Harmonized Tariff Schedule of the United States (2002)
(“HTSUS”). Customs liquidated the merchandise on June 6, 2002
under subheading 9031.49.9000 of the HTSUS. Agatec timely
protested Customs’ classification. After Customs denied the
protest, Agatec commenced this case pursuant to 19 U.S.C. §
1514(a) and 28 U.S.C. §§ 2631-37. The Court has jurisdiction
under 28 U.S.C. § 1581(a).
II. RECORD CHARACTERISTICS OF THE IMPORTED PRODUCT
The A410S and GAT120 products at issue in this case emit
horizontal or vertical beams of light allowing the user to find
level and plumb. See Tawil Aff. ¶ 3; Def.’s Resp. Pl.’s Stat.
“Undisputed” Facts 2-3. Both laser levels can be used only in
one dimension. Kiss Decl. ¶ 7. Their maximum operational range
is 1000 feet. Id. ¶ 7 (citing Pl.’s Ex. A (The Level of
Excellence) (Agatec’s product catalogue) at 6 & 8).
Both levels are usually mounted on a tripod, especially
when it is helpful to give the laser some height off the ground.
Tawil Aff. ¶ 7; Def.’s Resp. Pl.’s Stat. “Undisputed” Facts 9.
The levels may work in tandem with a receiver which is mounted on
Court No. 03-00165 Page 3
an excavator or grade rod to receive the level’s beam. Tawil
Aff. ¶ 7; Def.’s Resp. Pl.’s Stat. “Undisputed” Facts 9.
The A410S and GAT120 levels are used in construction
projects for houses or small buildings, as well as landscaping
for such structures. Kiss Decl. ¶¶ 6-7 & 9; Pl.’s Ex. C at 2
(instruction manual for GAT120 electronic level); Pl.’s Ex. D at
2 (instruction manual for A410S automatic laser). The
instruction manual for the GAT120 level describes the product as
“ideal for leveling applications in the construction industry.”
Pl.’s Ex. C at 2. It can be used for indoor and outdoor
projects. Id. Agatec’s product catalogue advertises the GAT120
as “[i]deal for contractors who work primarily in horizontal, but
have occasional use for vertical alignment at short distances.”
Pl.’s Ex. A, at 6. The instruction manual for the A410S level
describes the product as “an automatic visible laser that can be
used for leveling, vertical alignment, plumbing and squaring.
Applications include installing suspended ceilings, technical
flooring, partitions and a variety of outdoor alignment work.”
Pl.’s Ex. D at 2. Notwithstanding its occasional outdoor
applications, the A410S product was “designed with the interior
contractor in mind,” Pl.’s Ex. A at 13, and is used for
“[i]nstalling and aligning tilt-up walls, partitions and window
and door frames” as well as “[s]quaring walls, decks, and
foundations.” Id. at 8. In addition to the functionality
described in the product catalogue and instruction manuals,
Agatec president Gabriel Tawil states that with the help of a
Court No. 03-00165 Page 4
receiver mounted on an excavator, “the laser precisely measures
the distance above or below an established benchmark.” Tawil
Aff. ¶ 3.
Customs produced an affidavit of Richard Kiss, the Chief of
Survey for the New York District of the Operations Division of
the U.S. Army Corps of Engineers. Kiss describes the operability
of these laser levels as one of “lower order surveying,” which he
defines in distinction to “higher order surveying.” See id. ¶¶
5-7. “Higher order survey” levels require great accuracy and
operate in three dimensions. Kiss Decl. ¶¶ 5 & 7. The U.S. Army
Corps of Engineers executes “higher order surveying” projects
such as preparing land or hydrographic maps, establishing
boundaries, preparing for the construction of major public works
such as dams, highways or bridges, calculating the area of a
piece of land, triangulating, or determining the height of
objects above or below some horizontal reference level. See id.
¶ 5. Kiss lists representative “lower order surveying”
applications as “smaller-scale foundation and landscaping work,
and interior work such as finding level and plumb.” Id. ¶ 9.
III. CONTESTED HTSUS HEADINGS
Agatec believes that both the GAT120 and the A410S laser
levels are correctly classified under HTSUS 9015.30.4000.
Customs classified the laser levels under HTSUS 9031.49.9000 and
the parts and accessories under HTSUS 9031.90.5800.
HTSUS subheading 9015.30.4000 covers:
Court No. 03-00165 Page 5
Surveying (including photogrammetrical surveying),
hydrographic, oceanographic, hydrological,
meteorological or geophysical instruments and
appliances, excluding compasses; rangefinders; parts
and accessories thereof:
...
Levels:
...
Electrical . . . .
HTSUS 9015.30.4000. By contrast, HTSUS subheading
9031.49.9000 covers:
Measuring or checking instruments, appliances and
machines, not specified or included elsewhere in this
chapter; profile projectors; parts and accessories
thereof:
...
Other:
...
Other . . . .
Id. 9031.49.9000. HTSUS subheading 9031.90.5800 covers “parts
and accessories . . . of other optical instruments and
appliances, other than test benches . . . .” Id. 9031.90.5800.
IV. STANDARD OF REVIEW
“[S]ummary judgment is proper ‘if the pleadings [and the
discovery materials] show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)) (alteration
added).1 “In ruling on cross-motions for summary judgment, the
1
“When the Court’s rules are materially the same as the
[Federal Rules of Civil Procedure (“FRCP”)], the Court has found
it appropriate to consider decisions and commentary on the FRCP
in interpreting its own rules.” Former Employees of Tyco Elec.
Court No. 03-00165 Page 6
court must determine if there exist any genuine issues of
material fact and, if there are none, decide whether either party
has demonstrated its entitlement to judgment as a matter of law.”
Am. Motorists Ins. Co. v. United States, 5 CIT 33, 36 (1983).
The appropriate standard of review consists of two separate
inquiries: (1) a de novo review of Customs’ legal interpretations
of the tariff headings, see 28 U.S.C. § 2640(a)(1); and (2) a
non-deferential review of Customs’ factual findings subject to a
presumption of correctness in favor of Customs, see id. §
2639(a)(1). Cf. Universal Elec., Inc. v. United States, 112 F.3d
488, 493 (Fed. Cir. 1997) (holding that “as a practical matter”
the presumption of correctness “has force only as to factual
components” of a Customs classification decision).
V. DISCUSSION
A. Is HQ 965484 Entitled to Judicial Deference?
When reviewing a Customs classification, the Court is not
bound by the authority of any Customs ruling or interpretation.
However, where Customs has issued a thorough and logical ruling
that reflects its expertise in administering its detailed
statutory scheme and accords with its previous interpretations,
such decision may “claim respect” in proportion to its
persuasiveness under Skidmore v. Swift & Co., 323 U.S. 134
v. U.S. Dep’t of Labor, 27 CIT 380, 385, 259 F. Supp. 2d 1246,
1251 (2003).
Court No. 03-00165 Page 7
(1944). United States v. Mead Corp., 533 U.S. 218, 221 (2001);
see id. at 235.
Here, Customs argues in favor of extending Skidmore
deference to HQ 965484, a prior Customs classification ruling
analyzing whether certain merchandise was a “surveying
instrument” as understood by HTSUS heading 9015. In that ruling,
Customs responded to a protest by TLZ, Inc., a company that had
imported three varieties of “electro-mechanical pendulum-based
leveling system” using a laser diode. HQ 965484 at 1. The laser
diode is suspended on a pendulum and uses gravity to find true
level. See id. All three items were utilized in construction
projects to “align pipes, piers, and posts; square foundations,
walls, decks, window frames and door frames; plumb walls, posts
and door frames; set drainage grades; and furnish reference
points for HVAC (heating, ventilation, air conditioning),
lighting, sprinkler systems and skylights.” Id. In short, TLZ’s
products were in some respects similar, though by no means
identical, to Agatec’s laser levels. Customs analyzed the
relevant HTSUS headings and determined that TLZ’s laser diodes
were not described in HTSUS heading 9015. That determination
rested on two alternative premises: (1) “protestant has not
established that these goods are used for surveying or that they
are surveyor’s levels”; and (2) the goods “are within the
exclusion of [Explanatory Note] 90.15 . . . .” Id. at 2. The
cited Explanatory Note suggested that “levels (air bubble type,
etc.) used in building or constructional work” are not covered by
Court No. 03-00165 Page 8
HTSUS heading 9015. The entirety of the agency’s analysis of
that issue is as follows:
We find that the [TMZ laser diodes] are within the
exclusion of EN 90.15, excerpted above. The laser
diode aids these goods in determining true level.
Therefore, we find that they are not described in
heading 9015, HTSUS.
Id.
Customs contends that the Court should defer to the HQ
965484’s holding “that construction laser levels are classifiable
under Heading 9031 and not Heading 9015 . . . .” Def.’s Br. 17-
18. The problem with that contention is that HQ 965484 says
nothing of the sort. In sum, HQ 965484 contains a
straightforward recitation of the statutory HTSUS text, as well
as two factual findings: (1) that TLZ had failed to prove that
their laser diodes were used in surveying and (2) that the TMZ
laser diodes fell within the “construction levels” exclusion of
the explanatory note.
It is inappropriate to apply Customs’ findings in one
highly fact-specific classification ruling to a different
product. See Structural Indus., Inc. v. United States, 356 F.3d
1366, 1371 (Fed. Cir. 2004) (“[P]rior rulings with respect to
similar but non-identical items are also of little value in
assessing the correctness of the classification of a similar but
not identical item.”). The factual findings contained in HQ
965484 respect an import product that is similar, though by no
means identical, to the A410S and GAT120 laser levels. No
deference is therefore due to Customs’ classification of the TLZ
Court No. 03-00165 Page 9
laser diodes. On the other hand, if Customs is arguing that HQ
965484 articulates a broad principle that all construction levels
— and not merely the TMZ laser diodes — are classifiable under
heading 9031, HQ 965484 is hardly the sort of thorough and
logical explanation to which a court may defer under Skidmore.
Indeed, no fair reading of the ruling could countenance such an
expansive interpretation. The agency’s decision in that protest
review remained focused squarely on the product at issue, and
avoided generalized characterizations of construction levels.
The Court finds that for purposes of this case HQ 965484 is not
entitled to Skidmore deference.
B. Are Agatec’s A410S and GAT120 Levels, Along with Their
Accessories, Classifiable Under Heading 9031 of the HTSUS?
The U.S. Court of Appeals for the Federal Circuit’s
statement of law in Orlando Food Corp. v. United States applies
equally to this case:
The proper classification of merchandise entering the
United States is directed by the General Rules of
Interpretation (“GRIs”) of the HTSUS and the
Additional United States Rules of Interpretation. The
HTSUS scheme is organized by headings, each of which
has one or more subheadings; the headings set forth
general categories of merchandise, and the subheadings
set forth a more particularized segregation of the
goods within each [heading] category. At issue in
this case are two headings of the HTSUS and their
accompanying subheadings . . . .
140 F.3d 1437, 1439 (Fed. Cir. 1998). Under GRI 1, a court is to
construe the competing headings to determine the heading under
which the merchandise at issue is classifiable. See id. (citing
GRI 1, HTSUS). The express terms of heading 9031 exclude any
Court No. 03-00165 Page 10
imported merchandise that could be classified under heading 9015.
See HTSUS 9031 (including measuring or checking instruments “not
specified or included elsewhere in this chapter”). As such, the
parties agree that the critical question in this case is whether
heading 9015 applies to the merchandise.
The Federal Circuit has similarly provided guidance as to
how courts should construe HTSUS language:
HTSUS terms are construed according to their common
and commercial meanings, which are presumed to be the
same absent contrary legislative intent. In
construing a tariff term, the court may rely on its
own understanding of the terms as well as upon
lexicographic and scientific authorities. The court
may also refer to the Explanatory Notes accompanying a
tariff subheading. While these notes are not
controlling legislative history, they are nonetheless
intended to clarify the scope of HTSUS subheadings and
to offer guidance in their interpretation.
Len-Ron Mfg. Co., Inc. v. United States, 334 F.3d 1304, 1309
(Fed. Cir. 2003) (citations omitted). In a case such as this,
where the relevant tariff classification is controlled by use,
Customs must classify the merchandise “in accordance with the use
in the United States at, or immediately prior to, the date of
importation, of goods of that class or kind to which the imported
goods belong, and the controlling use is the principal use . . .
.” Additional U.S. Rule of Interpretation 1. “Principal use” is
the use that “exceeds any other single use.” Lenox Collections
v. United States, 20 CIT 194, 196 (1996) (quotation marks
omitted).
Agatec argues that its laser levels are electrical
“surveying” equipment. Agatec relies heavily on the 2002
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decision Heli-Support v. United States, which contains a helpful
discussion of prior judicial interpretations of HTSUS heading
9015. See Heli-Support, Inc. v. United States, 26 CIT 352
(2002). The imported product at issue in Heli-Support was a
helicopter- or aircraft-mounted high precision instrument used to
measure topography with a laser for later cartographic use. See
id. at 353. The court stressed the broad scope of HTSUS heading
9015, noting that surveying includes more than “mere surface
examinations” and was intended to include items that are not the
traditional tools of a surveyor’s trade. Id. at 355-56.
Ultimately, the court held that the imported product was
classifiable under heading 9015 and that the plaintiff’s
interpretation of heading 9015 to include only instruments “used
in the practice and science of surveying by a surveyor” was
incorrect. Id. at 356.
In finding that the imported instruments fell within the
scope of heading 9015, the court drew on three dictionary
definitions of the terms “survey” and “surveying.” 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. Encyclopedia Americana (1953) defines
“surveying” as
Court No. 03-00165 Page 12
the science of determining the positions of points on
the earth’s surface for the purpose of making
therefrom 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. The court then quoted a third and final definition of
“surveying” from Webster’s Third New International Dictionary of
the English Language (1981) (“Webster’s”):
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 355-56.
Consideration of the three definitions cited in Heli-
Support results in a complicated picture. All three definitions
would seem at first blush to accommodate Agatec’s laser levels,
which are capable of executing “precise[] measure[ments of] the
distance above or below an established benchmark.” Pl.’s Stat.
Mat. Facts Not Dispute ¶ 4. Recalling, however, that use
designations must be made on the basis of a product’s principal
use, see Lenox Collections, 20 CIT at 196, it is obvious that
Agatec’s laser levels are not “surveying” instruments and are
therefore not classifiable under heading 9015. Nowhere in the
laser levels’ instruction manuals or catalogue product
Court No. 03-00165 Page 13
descriptions does Agatec mention its levels’ ability to measure
distance. The laser levels themselves are incapable of spatial
measurement; only with the help of a mounted receiver device,
such as the MR80S, can they do so. See id. ¶¶ 4 & 17.
Still other infirmities undermine Agatec’s attempt to fit
its laser levels into the cited definitions. It is not enough
that a product be able to measure distance precisely; all three
definitions include additional definitional prerequisites. For
example, they all invoke the “earth’s surface” as a benchmark for
the surveying measurements. The Columbia Encyclopedia refers to
the measurement of distances and angles “on or near the earth’s
surface.” Heli-Support 26 CIT at 355. Encyclopedia Americana
requires that the measurements be made relative to the “earth’s
surface” itself. Id. Webster’s refers to “delineating the
contour, dimensions, and position of any part of the earth’s
surface.” Id. Agatec’s laser levels operate chiefly in a
construction environment, and are not principally measuring
positions relative to the earth’s surface.2
2
The Explanatory Note to heading 9015 provides explicitly that
some instruments used in “constructional work” are included in
heading 9015. It lists the varieties of instruments includable
in heading 9015:
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.
Court No. 03-00165 Page 14
The A410S instruction manual lists its primary applications
as “installing suspended ceilings, technical flooring, partitions
and a variety of outdoor alignment work.” Pl.’s Ex. D at 2.
Indeed, the A410S is designed for use by interior construction
contractors, see Pl.’s Ex. A at 13, a trade that is by definition
involved in edifying spaces that are distinct from the earth’s
surface. The GAT120 level is “ideal for leveling applications in
the construction industry.” Pl.’s Ex. C at 2. Nowhere in the
instruction manuals and the product catalogues is it suggested
that the laser levels are used to measure the surface of the
earth or determine the relative position of points to the earth’s
surface. Even the president’s affidavit, which is the only
evidence Agatec has produced referring to the measuring
capabilities of the laser levels, stops short of describing such
use as the principal use.3 Looking at all the record evidence,
references to construction applications overshadow the sporadic
Explanatory Notes, Chapter 90.15, 1603 (2d ed. 1996). Read in
context, the mention of “constructional work” refers back to the
listed “similar measurements” that properly determine the scope
of heading 9015. It is the nature of those “similar
measurements” with which the Explanatory Note is concerned, and
the reference to “constructional work” simply affirms that
surveying work is not excludable from the ambit of heading 9015
on account of its being “constructional” in nature. It is not,
as Agatec seems to suggest, an independent expansion of heading
9015 to cover all merchandise roughly analogous to surveying
instruments that is used in the “constructional” industry.
3
Agatec’s product catalogue has a separate section for
“Construction/Surveying Equipment.” See Pl.’s Ex. A at 1
(providing table of contents for product catalogue). Neither the
GAT120 nor the A410S is included in that section. See id. at 20-
22. Instead, both appear in the “General Construction” section.
See id. at 6 & 8.
Court No. 03-00165 Page 15
mentions of direct measurement of the earth’s surface.
Measurements incident to man-made construction projects may be
taken “near” the earth surface and therefore such measurements
are not excludable for that reason from the Columbia
Encyclopedia’s definition. However, the Encyclopedia Americana
and Webster’s require the determination of positions of points on
the earth’s surface. As such, those definitions are not
susceptible to a reading that would include Agatec’s laser
levels.4
Webster’s reports an alternative definition of “survey”
that does not refer to the earth’s surface as a benchmark. “To
survey” is defined as “to determine and delineate the form,
extent, and position of . . . by taking linear and angular
measurements and by applying the principles of geometry and
trigonometry.” Heli-Support, 26 CIT at 355. This definition
does not require the measurements to be relative to the earth’s
surface. On the other hand, it requires the taking of linear and
angular measurements and the application of geometric and
trigonometric principles. Agatec’s laser levels are capable of
measuring in one dimension only and there is no evidence that
they can measure angles. See Kiss Decl. ¶ 7; Pl.’s Resp. Def.’s
4
The Encyclopedia Americana definition also requires the
surveying measurements to be made “for the purpose of making
therefrom a graphic representation of the area.” Heli-Support,
26 CIT at 355. Nowhere in the record is it suggested that
Agatec’s laser levels may be used in such a capacity.
Furthermore, nowhere is it suggested that the targeted operators
of Agatec’s laser levels create graphic representations based on
the measurements registered by the laser levels.
Court No. 03-00165 Page 16
Stat. Mat. Facts Not Dispute ¶ 13. Moreover, Agatec has not
adduced any evidence at all to establish how geometric or
trigonometric principles may be applied to the data obtained from
the laser levels’ measurements to discern the form and the
position of objects.
As a final note, the Court should address the Explanatory
Note to heading 9015, invoked in support of both parties’
arguments. The Explanatory Note explicitly includes instruments
used “in determining heights above or below some horizontal
reference level.” Explanatory Notes, Chapter 90.15, at 1603.
The Explanatory Note concludes with the following limitation:
“This 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).”5 Id.
at 1604. The Explanatory Note, which of course in no way hems
the Court’s discretion to interpret the various headings, see
Len-Ron Mfg., 334 F.3d at 1309, sets up a mutually exclusive set
5
Agatec also argues that the exclusionary clause of the
Explanatory Note covers air bubble levels only. See Pl.’s Reply
10. On Agatec’s reading, the exclusionary note differentiates
between electrical levels (which are covered by heading 9015) and
non-electrical levels (which are not). A quick glance at the
text of the Explanatory Note suffices to demonstrate the
incorrectness of that position. The parenthetical reads “air
bubble type, etc.” The use of “et cetera” (albeit complicated by
the puzzling choice of “e.g.” later in the same sentence) must
mean that “air bubble type” levels are intended merely as an
illustrative example of a level “used in building or construction
work” rather than a further turn in the already labyrinthine
classification apparatus of heading 9015. The relevant
distinction, then, is between levels used in construction work
and surveying instruments.
Court No. 03-00165 Page 17
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. As noted
above, the A410S and GAT120 laser levels seem to fit both
descriptions. The principal use of the products will control,
and the record demonstrates that such use is apparently that of a
level used in construction work. Thus, the Explanatory Note
supports the Court’s independent finding that the common
dictionary meanings prevent a classification of the A410S and
GAT120 laser levels under heading 9015 of the HTSUS.
C. If Agatec’s A410S and GAT120 Levels Are Not Classifiable
Under Heading 9015, Are They Classifiable under Heading
9031?
Heading 9031 includes “[m]easuring or checking instruments,
appliances and machines, not specified or included elsewhere in
this chapter . . . .” Heading 9031, HTSUS. “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.” Webster’s 381. “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.” Id. 1400. The A410S and GAT120 laser levels
are optical instruments that aid in leveling, alignment,
Court No. 03-00165 Page 18
plumbing, and squaring for building and construction projects.
See supra Part II at 3. In addition, they may measure distance
in one dimension. See id. These functionalities obviously
constitute measuring and checking as defined by Webster’s and
therefore classifiable under heading 9031.
Subheading 9031.49 includes those measuring or checking
instruments that (1) are “other optical instruments and
appliances” and (2) are not used for inspecting semiconductor
wafers. See HTSUS 9031.49. The Explanatory Note to subheading
9031.49 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.” Explanatory Notes, Chapter 90.31, at 1658. The
A410S and GAT120 laser levels utilize visible laser beams to aid
human sight when aligning, plumbing, squaring, and leveling.
They are therefore classifiable under heading 9031, subheading
49.
VI. CONCLUSION
After careful review of the record, the relevant HTSUS
provisions, and the parties’ thorough and thoughtful briefs, the
Court finds that Customs has conclusively established that
Agatec’s A410S and GAT120 laser levels were properly classified
under HTSUS 9031.49.9000. There remain no genuine issues of
Court No. 03-00165 Page 19
material fact, and judgment shall be entered in favor of Customs
in this case.
___/s/ Richard W. Goldberg__
Richard W. Goldberg
Senior Judge
Dated: June 6, 2007
New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE
AGATEC CORP.,
Plaintiff, Before: Richard W. Goldberg,
Senior Judge
v.
UNITED STATES, Court No. 03-00165
Defendant.
JUDGMENT
Upon review of the parties’ respective motions for summary
judgment, and upon due deliberation, it is hereby
ORDERED that Plaintiff Agatec Corp.’s Motion for Summary
Judgment is DENIED; and it is further
ORDERED that Defendant U.S. Customs and Border Protection’s
Motion for Summary Judgment is GRANTED; and it is further
ORDERED that judgment be entered in favor of Defendant
United States Customs and Border Protection.
IT IS SO ORDERED
/s/ Richard W. Goldberg_
Richard W. Goldberg
Senior Judge
Date: June 6, 2007
New York, New York