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HQ 084357

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June 6, 1989

CLA2 CO:R:C:G: 084357 BPM

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.40.0000

Mr. Bill Sinclair
JDS Optics, Inc.
P. O. Box 6706, Station J
Ottawa, Ontario Canada K2A 3Z4

RE: Precision Attenuators

Dear Mr. Sinclair:

By letter dated January 27, 1989, you requested a tariff classification ruling for series 5000, 6000, and 7000 precision variable optical attenuators (VOATs) under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your request has been forwarded to this office for a reply.

FACTS:

The series 5000, 6000 and 7000 attenuators are small units containing prisms which reduce to precise levels the intensity of infrared light transmitted by optical fibers. The attenuators regulate the intensity of the light so that other instruments and appliances can be checked or measured. This is accomplished by use of two prisms, one of which is absorbing and one of which is clear. The amount of attenuation is accomplished by adjusting the position of the prisms so that the light beam passes through varying thicknesses of the absorbing prism. The 7000 series computercontrolled VOAT is described as being suitable for a wide range of applications from laboratory development to production testing. The 7000 contains a microprocessor which controls the amount of attenuation provided by the 7000. The series 5000 and 6000 VOATs are described as being suitable for laboratory use and developmental work, as well as system tests in the field. Neither the 5000 nor 6000 VOATs contain any electrical components.

ISSUE:

What is the appropriate classification for devices containing optical elements which reduce the intensity of infrared light transmitted through optical fibers and are used for laboratory development, production testing, developmental work and system tests?

LAW AND ANALYSIS:

These devices are designed and suitable for use in conjunction with telecommunications equipment. They adjust light levels to determine a system's operating range or to verify that separate measuring equipment (for example, bit error rate test equipment) operates accurately. Consequently, the filters are classifiable under heading 8525, HTSUSA, covering transmission apparatus for radiotelephony and radiotelegraphy. Nothing in the HTSUSA, nor the Explanatory Notes, which constitute the official interpretation of the HTSUSA at the international level, indicates that to be classified in this heading goods must be permanently installed for use with the remainder of the telephony equipment.

Since the units contain optical elements, which in fact provide the desired functioning of the units, they are also described by heading 9013, HTSUSA, covering other optical appliances and instruments and parts and accessories of these appliances and instruments. Additional U.S. Note 3 to Chapter 90.

The attenuators are also described by heading 9031, HTSUSA, covering measuring or checking instruments, appliances and machines. While the attenuators require other devices for the checking of the accuracy of the other devices to be accomplished, they remain appliances used for checking. Nothing in the HTSUSA nor the Explanatory Notes indicates that this type of checking appliances should not be classified under heading 9031. Within that heading, they are described by subheading 9031.40.0000, HTSUSA, covering other optical instruments and appliances. This provision is more specific than heading 9013. Additionally, Note 5 to Chapter 90 states that measuring and checking optical instruments, appliances or machines which, but for the note, could be classified both in heading 9013 and in heading 9031 are to be classified in heading 9031.

Note 1(m) to Section XVI states that Section XVI does not cover articles of Chapter 90. Since the attenuators are articles of Chapter 90, as discussed above, they are barred from classification under heading 8525 by Note 1(m).

Classification under heading 9030, HTSUSA, covering instruments and apparatus for measuring or checking electrical quantities, for measuring or detecting alpha, beta, gamma, Xray, cosmic or other ionizing radiations, is inappropriate. The attenuators do not measure or check electrical quantities, alpha, beta, gamma, Xray, cosmic or other ionizing radiations. They regulate levels of infrared light for checking the accuracy of other instruments.

Classification under heading 9001, HTSUSA, covering, inter alia, other optical elements would be inappropriate. Heading 9001 covers "optical elements" rather than "optical appliances" or "optical instruments." The attenuators are appliances or instruments as those terms are defined by Additional U.S. Note 3 to Chapter 90, and not optical elements.

Classification of the attenuators under heading 8543 is inappropriate since they are not electrical apparatus. Although the 7000 series attenuators contain electrical elements, they are not electrical apparatus, since they are not wholly electrical and since the optical features are not subsidiary to the electrical features. Explanatory Notes to heading 8453.

HOLDING:

The series 5000, 6000, and 7000 variable optical attenuators are classified under subheading 9031.40.0000, HTSUSA, covering measuring or checking instruments, appliances and machines; other optical appliances and instruments.

Sincerely,

John Durant, Director
Commercial Rulings Division


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