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HQ 089170


January 4, 1993

CLA-2 CO:R:C:M 089170 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.20.00

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266

RE: Protest No. 3801-91-100657; ND-YAG Laser RSY 500 P; 8515.80.00; laser for welding machine; Note 1(m) to Section XVI; EN 90.13; functional unit; Note 4 to Section XVI; Note 3 to Chapter 90; parts for laser welding and cutting machines; Note 2 to Chapter 90; Note 1(e) to Chapter 90

Dear Sir:

This is in response to the Application for Further Review of Protest No. 3801-91-100657, dated March 7, 1991, which pertains to the tariff classification of lasers and various laser parts under the Harmonized Tariff Schedule of the United States (HTSUS). Additional submissions dated August 9, September 12, 1991, February 11, 1992, and October 13, 1992, as well as information gathered at meetings on November 20, 1991 and September 29, 1992, were examined in rendering this decision.

FACTS:

The articles under consideration are the ND-YAG Laser RSY 500 P for a welding machine ("laser") and various parts of lasers used in welding and cutting machines. Upon importation, the entry for the laser was liquidated under subheading 9013.20.00, HTSUS, which provides for "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...Lasers, other than laser diodes." The parts were classified throughout the HTSUS depending on the description of the part.

The protestant, Rofin-Sinar, Inc., contends that the laser is properly classified under subheading 8515.80.00, HTSUS, which provides for "Electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus, whether or not capable of cutting; electric machines and apparatus for hot spraying of metals or sintered metal carbides; parts thereof...Other machines and apparatus." Furthermore, the protestant contends that parts of laser welding machines are properly classified under subheading 8515.90.20, HTSUS, which provides for "...Parts...Of welding machines and apparatus", and that parts of laser cutting machines are properly classified under subheading 8466.93.70, HTSUS, which provides for "Parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing heads and other special attachments for machine tools; tool holders for any type of tool for working in the hand...Other...For machines of heading 8456 to 8461...Other...Other...."

The ND-YAG Laser RSY 500 P is designed as a laser beam for a welding machine for use in a broad range of industrial settings requiring precision laser beam welding of metals which are characterized by a high reflection coefficient, high thermal conductivity and thermal sensitivity. The laser consists of the laser head, power supply, microprocessor control console, and an interface.

The microprocessor control console receives command signals from the user's workstation. Based on the commands received, the microprocessor control console shapes the temporal intensity of the laser's pulse and stores pulse parameters such as height, shape, frequency, length, energy, average poser, as well as those parameters which regulate the laser's internal temperature and safety functions. Additionally, the microprocessor control console will store up to 100 pre-programmed pulse conditions involving all of the pulse parameters for multiple application.

In performing this function the microprocessor control console interfaces with the user's workstation to control the feeding and positioning of the device, as well as the automatic observing and checking of the welding operation to allow for programmed adjustments of the positioning of the workpiece and termination of the welding process. In other words, the interface connects the laser and microprocessor control console to the user's customized parts handling device or workstation.

ISSUE:

Is the ND-YAG Laser RSY 500 P properly classified under subheading 8515.80.00, HTSUS, as a laser welding machine and apparatus, or under subheading 9013.20.00, HTSUS, as a laser?

What is the proper classification of various parts for lasers under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

I. Classification of ND-YAG Laser 500 P

The competing headings for the laser are heading 8515 and 9013, HTSUS.

Heading 8515, HTSUS, is within Section XVI, HTSUS, making the Section XVI, HTSUS, notes applicable to the classification of the laser. Note 1(m) to Section XVI, HTSUS, states that this section does not cover "[a]rticles of chapter 90...." Therefore, classification under heading 8515, HTSUS, is precluded if the laser beam is considered an article of Chapter 90, HTSUS.

Explanatory Note (EN) 90.13 of the Harmonized Commodity Description and Coding System (HCDCS) states that heading 9013, HTSUS, includes lasers and states that:

In addition to the lasing medium, the energy source (pumping system) and the resonant optical cavity (reflector system), i.e., the basic elements combined in the laser head (possibly with Fabry-Perot interferometers, interference filters and spectroscopes), lasers generally also incorporate certain auxiliary components (e.g., a power supply unit, a cooling system, a control unit and, in the case of the gas laser, a gas supply system or, in the case of liquid lasers, a tank, fitted with a pump for the dye solutions). Some of these auxiliary components may be contained in the same housing as the laser head (compact laser) or may take the form of separate units, connected to the laser head by cables, etc. (laser system). In the latter case the units are classified in this heading provided they are presented together.

Lasers 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....

Examples include:

(i) Machine-tools for working any materials by removal of material by laser (e.g., metal, glass, ceramics or plastics) (heading 84.56).

(ii) Laser soldering, brazing or welding machines and apparatus, whether or not capable of cutting (heading 85.15).

HCDCS, p. 1479. The Explanatory Notes, although not dispositive, are looked to for guidance in interpreting the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 24, 1989).

According to EN 90.13, lasers classifiable in heading 9013, HTSUS, may contain auxiliary components such as a power supply unit, a cooling system, and a control unit. However, lasers which have been adapted to perform quite specific functions by the addition of ancillary equipment such as work-tables or workstations and are, therefore, identifiable as working machines, are not properly classified as lasers in heading 9013, HTSUS.

In this case, the issue to be decided is whether the microprocessor control console and interface are considered acceptable auxiliary components or are considered ancillary equipment which would exclude the laser from classification in heading 9013, HTSUS. The protestant contends that the laser is excluded from heading 9013, HTSUS, because it contains critical ancillary equipment, the microprocessor control console and interface. The protestant claims these components give the laser the means of feeding and positioning workpieces, as well as the means of observing and checking the progress of the welding operation. The protestant states that the microprocessor control console and interface, like the laser and power supply, are necessary and critical components which contribute to the intended function of laser welding.

The micro processor control console receives command signals from the user's workstation. Based on the commands received, the microprocessor control console shapes the temporal intensity of the laser's pulse and stores pulse parameters. The interface acts as a connection between the microprocessor control console and the user's workstation. All of these components, the micro processor control console, interface and user's workstation, operate together to control the feeding and positioning and the observing and checking of the welding operation.

We are of the opinion that the microprocessor control console is a piece of auxiliary equipment listed in EN 90.13 as "a control unit." However, the interface is not specifically mentioned in EN 90.13 as a piece of auxiliary or ancillary equipment. Nevertheless, we find that the interface is a piece of auxiliary equipment, as it is a part of the microprocessor control unit. The microprocessor control console shapes the temporal intensity of the laser's pulse and stores the pulse's parameters. The pulses are then transmitted to the user's workstation through the interface. The interface is the medium through which the laser and microprocessor control console exert their generated energy. The interface provides the connection between the microprocessor control console and workstation and is, therefore, a necessary part of the microprocessor. As the microprocessor control console and interface are considered auxiliary equipment of the laser described in EN 90.13, the laser is not excluded from classification under subheading 9013.20.00, HTSUS.

Classification of the laser under subheading 9013.20.00, HTSUS, makes the Chapter 90, HTSUS, notes applicable to this classification. Note 3, Chapter 90, HTSUS, states that "[t]he provisions of note 4 to section XVI apply also to this chapter." Note 4 to Section XVI, HTSUS, states:

Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.

In this case, the note for functional units is applicable to the classification of the laser. Clearly, this laser is a functional unit. It is a machine that consists of individual components interconnected through electric cables intended to contribute to the clearly defined function of generating a laser beam. Therefore, the laser, microprocessor control console and interface are classified as a functional unit under subheading 9013.20.00, HTSUS.

II. Classification of Parts

The protestant contends that the parts of laser welding and cutting machines are classified pursuant to Note 2 to Section XVI, HTSUS, under subheading 8515.90.20, HTSUS, as parts of welding machines, and under subheading 8466.93.70, HTSUS, as parts of cutting machines.

However, we have determined that the above described laser is properly classified under subheading 9013.20.00, HTSUS. Therefore, to determine the classification of parts in Chapter 90, HTSUS, an examination of the relevant chapter notes must take place. For the classification of parts, Note 2 to Chapter 90, HTSUS, states:

Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(a) Parts and accessories which are goods included in any of the headings of this chapter or chapters 84, 85 or 91 (other than heading 8485 and 8548 or 9033) are in all cases to be classified in their respective headings;

(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind;

(c) All other parts and accessories are to be classified in heading 9033.

There is no question as to the classification of the first category of parts pursuant to Note 2(a), Chapter 90, HTSUS. Articles which are specifically provided for by name in the headings in chapters 84, 85, 90 and 91, HTSUS, are to be classified therein. The second category of parts, covered by Note 2(b), Chapter 90, HTSUS, have a general use with various machines but can be recognized as being parts of a particular machine by virtue of being designed or engineered for a particular machine. This category of article is different from the third category of parts, covered by Note 2(c), Chapter 90, HTSUS, which have general use in machines but can be used interchangeably in a variety of machines.

Additionally, Note 1(e) to Chapter 90, HTSUS, excludes "[p]arts of general use, as defined in note 2 to section XV, of base metal (section XV) or similar goods of plastics (chapter 39)...." Note 2 to Section XV, HTSUS, states:

Throughout the tariff schedule, the expression "parts of general use" means:

(a) Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metal;

(b) Springs and leaves for springs, of base metal, other than clock or watch springs (heading 9114); and

(c) Articles of heading 8301, 8302, 8308 or 8310 and frames and mirrors, of base metal, of heading 8306.

Therefore, the parts in this protest which meet the definition of "parts of general use" are excluded from classification under Chapter 84, 85 and 90, HTSUS. For example, such parts included but are not limited to tube and pipe fittings, wire, chain, nails, tacks, screws and bolts, springs, clasps, etc. These articles should be classified in their respective eo nomine headings.

The protestant states that there are non-dedicated parts which should be classified eo nomine in accordance with Note 2(a) to Section XVI, HTSUS. There appears to be no dispute in regards to the non-dedicated parts. However, these non-dedicated parts should be classified pursuant to Note 2(a), Chapter 90, HTSUS. Therefore, the parts in this protest which are goods included in any of the headings in Chapters 84, 85 and 90, HTSUS, should be classified within their respective headings in those Chapters.

The remainder of the parts are to be classified pursuant to Note 2(b), Chapter 90, HTSUS, under subheading 9013.90.40, HTSUS, which provides for "...Parts and accessories...Other." The protestant has submitted evidence that these parts are solely or principally used with its lasers. This evidence is in the form of an affidavit by the International Technical Coordinator for the protestant. The affiant states that these parts were designed and manufactured by the protestant or manufactured externally to the protestant's specifications and are used exclusively as parts of the protestant's laser. The affiant continues that the parts have no other commercial utility other than their use with the laser.

HOLDING:

The ND-YAG Laser RSY 500 P is properly classified under subheading 9013.20.00, HTSUS, which provides for "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...Lasers, other than laser diodes." This part of the protest is denied.

The parts of the laser are to be classified in accordance with the Note 1(m) and Note 2 to Chapter 90, HTSUS, as set forth in the above analysis. This part of the protest is denied in part and granted in part.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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