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HQ 962893




March 5, 2001

CLA-2 RR:CR:GC 962893 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.90

Ms. Courtney Seelinger
U.S. Customs Manager
Tektronix, Inc.
P.O. Box 500
Beaverton, OR 97077-0001

RE: Tunable Laser Diode Sources

Dear Ms. Seelinger:

In a letter dated April 21, 1999, Tektronix requested a ruling under the Harmonized Tariff Schedule of the United States (HTSUS), from the Director, Customs National Commodity Specialist Division, in New York, for the classification of three models of tunable laser diode sources. The request was forwarded to this office for reply. We regret the delay.

FACTS:

The articles are tunable laser diode sources, models LPB1100, LPB1300 and LPB1550. In a phone conference on September 28, 2000, you informed a member of my staff that the products are currently entering the U.S. through Portland, OR, and have been classified under subheading 9013.80.90, HTSUS.

These articles are described as bench instruments for use in the design and testing of photonic network communications systems. According to product literature submitted, the tunable laser diode source is used in conjunction with other measuring instruments to allow the user to satisfy the requirements for physical-layer test applications and to characterize optical communication systems, optical amplifiers, and fiber optic components.

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.

Tektronix claims that the tunable laser diode sources should be classified in the provision for instruments and apparatus for measuring or checking quantities of heat, sound or light; other instruments and apparatus using optical radiations (ultraviolet, visible, infrared); electrical; under subheading 9027.50.40, HTSUS.

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 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 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).

In this situation, the Tektronix tunable laser diode instruments are similar to the prior tunable laser decisions. The Tektronix 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. However, although it is intended to be used “in conjunction with” measuring instruments, “the instrument themselves do not perform any measuring or checking function.” There also is no evidence that the tunable laser diode instruments are imported together with any measuring or checking instruments.

In support of the contention that the tunable laser diode sources should be classified in subheading 9027.50.40 or heading 9031, as measuring instruments, HQ 961882 (August 3, 1998), which concerned signal generators, devices used in testing communications equipment, is cited. The signal generators were electronic instruments that produced periodic voltage or current waveforms, signals or pulses that were used in testing and calibration applications. In that case, Customs determined that the correct classification was under subheading 9030.89.00, HTSUS. The ENs to heading 90.30 state as follows: “[a]part from the above mentioned types of instruments or apparatus which generally effect direct measurements, the heading also includes those which supply the operator with certain data from which the quantity to be measured can be calculated.” HQ 961882 held that heading 9030 encompassed instruments and apparatus which directly perform a measuring or checking function as well as articles which generate electrical signals utilized by other instruments and apparatus that perform such measuring and checking functions. Tektronix argues that the same reasoning should apply to the tunable laser diode sources since they are used in conjunction with other instruments which measure quantities of light. However, we note that there is not a similar EN for heading 9027 or heading 9031, as exists for heading 9030. Since the Tektronix tunable laser diode instruments are not being imported in conjunction with other instruments with measurement capability, they will not be classified as a measuring instrument themselves.

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. Therefore, headings 9027, HTSUS, and 9031, HTSUS, are not appropriate.

We find that the correct classification of the Tektronix instrument is 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


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