CLA-2 RR:CR:GC 962890 KBR
Ms. Irma Ruiz
Customs Brokerage Advisor
Nippon Express USA, Inc.
70 Seaview Drive
Secaucus, NJ 07094
RE: Tunable Laser Light Source
Dear Ms. Ruiz:
In a letter dated May 7, 1999, on behalf of Santec USA Corporation, Nippon Express USA, Inc. requested a binding ruling under the Harmonized Tariff Schedule of the United States (HTSUS), from the Director, Customs National Commodity Specialist Division, in New York, for a tunable laser light source. The request was forwarded to this office for reply. We regret the delay.
FACTS:
The article is a tunable laser light source, model TSL-210. A submitted manual describes this article as an external cavity tunable semiconductor laser which enables a person to freely tune wavelength and high optical output power. It may be used as a single unit or an evaluation system using communication control for the middle and final inspections in optical part production processes and research development fields. We also received an email message from Santec USA Corporation on February 28, 2001, explaining the capabilities of the instrument.
The instruments are composed of optical and electrical components contained in a metal case. The optical components include an optical bench, a laser diode chip, lenses, isolators, grating mirrors, and optical fiber cable. The electrical components include a central processing unit, mainboard, current control board, and a power supply. All three models are similar with the primary difference being the wavelength range produced.
ISSUE:
What is the proper classification under the HTSUS for tunable laser diodes?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
The HTSUS provisions under consideration are as follows:
9013 Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof:
Other devices, appliances and instruments:
9013.80.90 Other.
9027 Instruments and apparatus for physical or chemical analysis for example, polarimeters, refractometers, spectrometers, gas or smoke analysis aparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound, or light (including exposure meters); microtomes; parts and accessories thereof:
9027.50 Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared):
9027.50.40 Electrical:
Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
Other optical instruments and appliances:
Other:
Other
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Three headings within chapter 90 are under consideration, heading 9013, 9027 and heading 9031. Heading 9013, in pertinent part, includes lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in chapter 90. Heading 9027, in pertinent part, includes instruments and apparatus for measuring or checking quantities of heat, sound, or light. Heading 9031, in pertinent part, includes measuring or checking instruments, appliances and machines, not specified or included elsewhere in chapter 90.
In part, EN 90.13 (p. 1600) states that:
[l]asers are classified in this heading not only if they are intended to be incorporated in machines or appliances but also if they can be used independently, as compact lasers or laser systems, for various purposes such as research, teaching, or laboratory examinations.
However, the heading excludes lasers which have been adapted to perform quite specific functions by adding ancillary equipment consisting of special devices (e.g., work-tables, work-holders, means of feeding and positioning workpieces, means of observing and checking the progress of the operation, etc.) and which, therefore, are identifiable as working machines, medical apparatus, control apparatus, measuring apparatus, etc. Machines and appliances incorporating lasers are also excluded from the heading. Insofar as their classification is not specified in the Nomenclature, they should be classified with the machines or appliances having a similar function.
In construing heading 9013, Customs has determined that where a light source contains optical components other than a laser, but was not provided for more specifically elsewhere in chapter 90, such a good was classifiable within heading 9013. See HQ 956919 (December 12, 1994), and HQ 957966 (October 31, 1995).
Customs previously found in HQ 956919 that tunable laser diode modules were classified under subheading 9013.80.60, HTSUS (now subheading 9013.80.90, HTSUS). Because the merchandise contained a laser diode chip, the light source could not be classified under subheading 9013.20.00, HTSUS, as a laser, other than a laser diode. Customs found that even if the light source contained a laser other than a laser diode, that component would still be just one of many optical components contained within the light source. Therefore, because the light source, which contained various optical components, was not classifiable elsewhere under chapter 90, HTSUS, it was classifiable under subheading 9013.80.60, HTSUS (now subheading 9013.80.90, HTSUS). See NY 873993 (May 27, 1992).
The Santec tunable laser diode instruments are similar to the prior tunable laser decisions. The Santec devices are self contained instruments designed to be used in conjunction with other instruments such as oscilloscopes, optical spectrum analyzers, and SONET/SDH testers for checking optical communications systems, optical amplifiers and fiber optic components. According to a response received from Santec on February 28, 2001, this article does not actually measure anything. It “is just a light source, not [a] measurement [instrument].”
Heading 9027 and heading 9031 concern measuring and checking instruments. The terms “measuring “ or “checking” are not defined in the HTSUS nor in the ENs. In United States v. Corning Glass Works, 66 CCPA 25,27, 586 F.2d 822, 825 (1978), the court quoted Webster’s Third New International Dictionary, 381 (1971), “’Check’ is defined as “to inspect and ascertain the condition of, especially in order to determine that the condition is satisfactory; … investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of …; to investigate and make sure about conditions or circumstances….”
The term “measure” is defined as follows: “[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount …; measure the dimensions of; take the measurements of …; to compute the size of ... from dimensional measurements.” Webster’s Third New International Dictionary, 1400 (1971). See HQ 954682 (July 14, 1994); HQ 950196 (January 8, 1992); 960429 (August 19, 1998); HQ 088025 (January 17, 1991).
Here, we find that the article does not “measure” or “check,” but rather the device produces light only. Therefore, headings 9027, HTSUS, and 9031, HTSUS, are not appropriate.
We find that the correct classification of the Santec instrument is as an optical appliance and instrument, not specified or included elsewhere in the chapter in subheading 9013.80.90, HTSUS.
HOLDING:
The Tunable Laser Diode Sources are classifiable under subheading 9013.80.90, HTSUS, as an other optical appliances and instruments, not specified or included elsewhere, other, other.
Sincerely,
John Durant, Director
Commercial Rulings Division