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HQ 964451




March 8, 2001

CLA-2 RR:CR:GC 964451 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.90

Mr. Al Low
Import Operations Manager
Agilent Technologies, Inc.
395 Page Mill Road, MS A2-04A
Palo Alto, CA 94303-0870

RE: Tunable Laser Sources

Dear Mr. Low:

In a letter dated July 14, 2000, you 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 the classification of two laser sources and a compact tunable laser source. Your request was forwarded to this office for reply concerning the compact tunable laser source.

FACTS:

The article is a compact tunable laser source, model #81689A. It is part of a lightwave multimeter mainframe and modules consisting of seven components: the mainframe, the power sensors, the optical heads, the return loss, laser sources (standard and high power) and compact laser sources. You originally requested a classification ruling for three components: the compact tunable laser source, #81689A; the laser sources (standard), #81650A, 81651A, 81652A, 81653A, 81654A and 81655A; and the laser sources (high power), #81656A and 81657A. On August 9, 2000, the National Commodity Specialist Division advised you that your request for a ruling on the laser sources (standard) and laser sources (high power), could not be addressed for lack of sufficient information upon which to base the ruling. This ruling concerns only the compact tunable laser source.

The Agilent 8163A lightwave multimeter series is a fiber-optic multipurpose measurement tool used for testing optical components and systems. The system measures quantities of light by use of optical radiation. It is capable of measuring basic fiber-optic parameters and replaces stand alone instruments such as optical power meters, dedicated loss test sets, return loss meters and stable optical sources. The lightwave multimeter is used in test applications such as the Dense WDM (Wavelength Division Multiplexing) test, the classic EDFA (Erbium Doped Fiber Amplifier) test, the classic component test and the CD/PMD (Chromatic Dispersion/Polarization Mode Dispersion) test. This system replaces Hewlitt Packard Company’s 8153 lightwave multimeter series. Agilent Technology, Inc., is a former business unit of Hewlitt Packard Company.

The compact tunable laser, the only component subject to this ruling, provides a laser output at a particular laser wavelength that is tunable over a specific wavelength range. It contains a Fabry-Perot laser diode, features an external cavity and incorporates various other elements like a printed circuit board and a coupler. The physical composition is:

3 printed circuit assemblies (PCA)
1 laser chip
1 inline isolator/taped coupler
1 grating
1 prism
1+ collimating lens
1+ focusing lens
1 stepper motor
1 fiber optic cable assembly
Cavity machine parts
Chassis sheetmetal parts
Plastic front panel

You describe the compact tunable laser source as capable of being controlled remotely or from the front panel of the mainframe in which it is housed. The compact tunable laser source does not stand alone but must be inserted into a slot in the mainframe. It is used in DWDM (Dense-WDM), WDM, EDFA and Passive Component Test applications. Its continuous modehop free-tuning permits setting complex configurations to the target wavelength.

You state that the article is built specifically to work with the Agilent 8163A Lightwave Multimeter Mainframe, 8164A Lightwave Multimeter Mainframe, 8164A Lightwave Measurement System Mainframe and 8166A Lightwave Multichannel System Mainframe.

You claim that the tunable laser source 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; or in the provision for diodes, transistors and similar semiconductor devices, light-emitting diodes (LED’s), under subheading 8541.40.20, HTSUS.

ISSUE:

What is the proper classification under the HTSUS for a tunable laser source?

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:

Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof:

Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes:

Light-emitting diodes (LED’s)

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).

Heading 8541 includes diodes, transistors and similar semiconductor devices, and light-emitting diodes. EN 85.41(C) defines light-emitting diodes as “devices which convert electric energy into visible, infra-red or ultra-violet rays. They are used, e.g., for displaying or transmitting data in control systems.” EN 85.41(C) also defines laser diodes as an article which will “emit a coherent light beam and are used, e.g., in detecting nuclear particles, in altimetering or in telemetering equipment, in communication systems using fibre optics.”

In NEC Electronics, Inc. v. U.S., 144 F. 3d 788 (CAFC May 19, 1998), the court in upholding the Customs Service decision, found that laser diodes modules were classifiable under subheading 8541.40.20, HTSUS. In this case the court found that pursuant to GRI 3(b), the laser diode component gave the laser diode module its essential character. Customs has since followed this finding for similar products. See HQ 960815 (July 1, 1998).

However, the subject tunable laser diode instruments are not similar to the article in NEC. In this case the articles are not simply a ‘component’ as was the situation in NEC, but finished plug in modules. The tunable laser diode instruments before us are more complex articles. The laser diode is tunable containing more optical components than incorporated in the article in NEC, including focusing lenses, collimating lenses, prisms, diffraction grating mirrors, isolators, etc. The optical components are not merely subsidiary components. Further, in reviewing the sales materials you submitted and viewed from your website, the materials often reference the optical components, obviously demonstrating their importance and non-subsidiary nature.

In HQ 957966 (October 31, 1995), a case involving laser diodes and optical elements, Customs found that “the evidence does not support classification as a laser.” Customs found that the optical elements were “a critical component” and “cannot be considered subsidiary”. Id.

Further, heading 8541, HTSUS, is inappropriate where the article is complex and combined with goods of other headings. Customs, in HQ 962957 (October 23, 2000), held that heading 8541, did “not include combinations of goods from two or more distinct groups enumerated in heading 8541, or combinations of goods of heading 8541 and another heading, when the combination of goods do not contribute to a single function covered by a single group enumerated in heading 8541. Thus, [the combined components] are excluded from classification in heading 8541.” (citing ABB Transmission v. United States, 19 CIT 1044, 896 F. Supp. 1279 (1995). In this case optics and a laser diode are combined to create an article outside the scope of heading 8541, a testing device for optical cable. Therefore, we find that heading 8541 does not apply.

Note 1(m) of Section XVI of the HTSUS, provides that "this section [which includes chapter 85 and thus subheading 8541.40.20, HTSUS] does not cover . . . Articles of chapter 90 [including subheading 9013.80.90, HTSUS and subheading 9031.49.90, HTSUS]." Note 1(m) thus states a rule of interpretation that articles which are described in chapter 90 cannot be classified in chapter 85. See Sharp Microelectronics Technology, Inc. v. United States, 20 C.I.T. 793; 932 F. Supp. 1499; (July 1, 1996).

Additional U.S. Note 3 to chapter 90 limits the definition of “optical appliance” and “optical instrument” for purposes of the chapter to those which “incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose.” As discussed above, we find that the optical elements in the tunable laser diode device are not subsidiary. Therefore, this article should be classified in chapter 90.

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).

In this situation, the Agilent tunable laser diode module is similar to the aforementioned tunable laser decisions. In another recent Customs decision, HQ 962893 (March 5, 2001), Customs found that a tunable laser diode device was classified under subheading 9013.80.90, HTSUS, even though the instrument was not only a component in a larger unit, but was a self-contained instrument. In this case, Agilent’s tunable laser diode module is not a self contained unit but only a removable module which must be plugged into a slot in the mainframe. Although the article may be used in conjunction with modules of the Lightwave Multimeter to perform measurements of light, the tunable laser source by itself is classifiable as an optical device or instrument in subheading 9013.80.90, HTSUS.

In support of the contention that the tunable laser diode sources should be classified in subheading 9027.50.40 as measuring instruments, you cite HQ 961882 (August 3, 1998), which concerns signal generators, devices used in testing communications equipment. The signal generators are electronic instruments that produce periodic voltage or current waveforms, signals or pulses that are used in testing and calibration applications. 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. Agilent 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.

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 Agilent compact tunable laser source is an optical appliance and instrument, not specified or included elsewhere in chapter 90, in subheading 9013.80.90, HTSUS.

HOLDING:

The Tunable Laser Source is classifiable under subheading 9013.80.90, HTSUS, as an other optical instrument, not specified or included elsewhere in chapter 90, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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