                             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
Court No. 03-00165                                            Page 11

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
