Importer Says Its Laser Levels Are Tools for 'Surveying,' Not Measuring
Importer Topcon Positioning Systems on Nov. 3 told the Court of International Trade that its "laser levels" are "surveying instruments," properly classified under duty-free Harmonized Tariff Schedule subheading 9015.30.4000, which provides for "levels" used for "surveying." In a motion for summary judgment, Topcon also argued that its accessories are, "in turn," classified under duty-free subheading 9015.90.0030, which covers accessories of surveying instruments (Topcon Positioning Systems v. United States, CIT # 14-00189).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The importer argued that even CBP knows Topcon's position is right, citing an internal CBP communication that said Topcon "really has a point here" and that leveling "in an exterior location" would warrant classification under heading 9015 "as a surveying level." However, CBP's HQ ruling "nevertheless erroneously classified Topcon’s laser levels as mere measuring or checking instruments under Heading 9031," the brief said.
At issue specifically are surveying instruments consisting of various models of rotating and field beam utility (pipe) laser levels that Topcon says are classifiable under subheading 9015.30.4000 (see 2109290048). CBP instead classified the goods under subheading 9031.49.9000, which provides for measuring instruments "not specified or included elsewhere in the chapter," dutiable at 3.5%. The laser level parts were reclassified under subheading 9031.90.5800, also dutiable at 3.5%.
In its motion for summary judgment, Topcon said that "standard dictionary definitions, as corroborated by industry sources," the relevant Explanatory Notes (ENs) and "expert witnesses" show that the term "surveying" includes the "measurement of elevation relative to the earth’s surface through leveling." The ENs explicitly put both pipe laser levels and tripod-mounted laser levels under heading 9015 and distinguish the tripod-mounted levels from simple "air bubble" levels used for indoor alignment, the brief said.
The importer argued that its laser levels are "primarily used for surveying," as established by each of the factors established by the predecessor court to the U.S. Court of Appeals for the Federal Circuit in its 1977 decision U.S. v. Carborundum. In Carborundum, the court established various factors to assess "commercial fungibility." The factors are the use in the "same manner as merchandise which defines the class," the goods' "general physical characteristics," the "economic practicality of so using the import," the ultimate purchasers' expectations, the channel of trade in which the goods are sold, the "environment of the sale" and the "recognition in the trade of this use."
Topcon argued that the court here must decide whether the subject goods are "commercially fungible with a class or kind of goods that are principally used for 'surveying.'" Each Carborundum factor "supports the conclusion" that the principal use of the class or kind of merchandise to which the subject lasers belong was "surveying," the brief said.
For instance, the subject laser levels "are actually used in surveying and the trade recognizes their utility for such applications," the brief said. Topcon's tools "are deployed outdoors in large construction sites to facilitate leveling over long distances, including across large airports," like automatic and digital levels, "which are undisputedly surveying instruments," the importer said. The company's distributors "market and thus sell these products to professional surveyors and large contractors," with the only difference being that "Topcon’s laser levels perform the tasks faster, safer, require fewer people, and present fewer opportunities for human error," the brief said.