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HQ 965639




September 12, 2002

CLA-2 RR:CR:GC 965639 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.50.40

Port Director
U.S. Customs Service
Building # 77
JFK International Airport
Jamaica, NY 11430

RE: Protest 4701-02-100492; Lightwave Measurement System and Tunable Laser Source Modules

Dear Port Director:

This is our decision on protest 4701-02-100492 filed by Agilent Technologies, against your action regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the Lightwave Measurement System and tunable laser diode source modules. The entries under protest were liquidated on February 8, 15, and 22, 2002, and this protest was timely filed on April 18, 2002.

FACTS:

The articles involved are the Lightwave Multimeter measurement System, Models 8164A and 8164B. Also involved are tunable laser diode source modules, model #81680A, 81640A, 81642A and 81682A.

In preparing this decision, consideration was given to arguments presented by protestant in a teleconference with representatives of this office on September 10, 2002, as well as a supplemental submission dated June 20, 2002.

The Agilent 8164A/B 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 sends light to the device being tested and measures the light that is returned to the 8164A/B lightwave measurement system mainframe. The 8164A/B characterizes the effects of the device on the lightwave and displays those effects on the cathode ray tube monitor contained within the 8164A/B. The 8164A/B is used principally to test optical components such as multiplexers, demultiplexers, optical switches, isolators, connectors and amplifiers, during their manufacture.

The 8164A/B can be used to measure the absorption of light by the tested device, effects on light wavelength, effects on chromatic dispersion (the color of light), cross talk (such as when you hear another conversation on the telephone), and signal power.

The 8164A/B is the mainframe unit and has a plug-in port or slots where tunable laser sources may be inserted and four slots for hosting power modules, return loss modules, compact tunable lasers or fixed laser sources. However, only the mainframe unit and the main tunable laser source module are involved in this protest. The modules which would be plugged into the four slots are not involved in this protest. The 8164A/B has a color display and a 3.5 inch floppy drive. The 8164A/B is used to test devices such as multiplexers, demultiplexers, optical switches, isolators, connectors and amplifiers, fiber bragg gratings or thin film filters.

The mainframe is imported with the tunable laser source module. The tunable laser source module generates low source spontaneous emission optical output. The tunable laser source module provides a laser output at a particular laser wavelength that is tunable over a specific wavelength range. It contains a Fabry-Perot laser diode, optical lenses, features an external cavity and incorporates various other elements like a printed circuit board and a coupler. The tunable laser source module is capable of being controlled remotely or from the front panel of the mainframe in which it is housed. The tunable laser source module does not stand alone but must be inserted into a slot in the mainframe.

At entry the Lightwave Multimeter were classified in subheading 9027.50.40, HTSUS, and subsequently liquidated under subheading 9013.80.90, HTSUS. The tunable laser source modules at entry were classified in subheading 9027.90.54, HTSUS, and subsequently liquidated under subheading 9013.80.90, HTSUS.

The protestant claims that the Lightwave Multimeter mainframe and tunable laser source module 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 the Lightwave Multimeter measurement system when imported with a tunable laser source module?

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. GRI 2(a) provides in pertinent part that “[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.”

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:

9027.90 Microtomes; parts and accessories:

Parts and accessories:

Other:

Of instruments and apparatus of subheading 9027.20, 9027.30, 9027.40, 9027.50 or 9027.80

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 that tunable laser diode sources were classified under 9013.80.90, HTSUS. See HQ 962947 (March 12, 2001), HQ 962890 (March 5, 2001), HQ 962893 (March 5, 2001), HQ 956919 (December 12, 1994)(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 9013.80.90, HTSUS. See NY 873993 (May 27, 1992).

However, the article involved in the instant protest is a Lightwave Multimeter mainframe unit imported with a tunable laser source module. The protestant argues that, as such, the combined importation should be classified in subheading 9027.50.40 as measuring instruments. In HQ 951863 (July 10, 1992), Customs found that an article which analyzed light emitted by LEDs and laser diodes was classified in subheading 9027.50.40, HTSUS.

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 perform the task of “measuring” or “checking”. The mainframe and tunable laser source module are used to test devices such as multiplexers, demultiplexers, optical switches, isolators, connectors and amplifiers, fiber bragg gratings or thin film filters. See above description in the FACTS section.

Although we note that the article is imported without the modules for the four upper slots, pursuant to GRI 2(a), we find that the correct classification of the Agilent Lightwave Mulitmeter mainframe when imported with the tunable laser source module is classifiable as an incomplete instrument or apparatus for measuring or checking quantities of heat, sound or light; other instruments and apparatus using optical radiations (ultraviolet, visible, infrared); electrical, in subheading 9027.50.40, HTSUS.

HOLDING:

The Lightwave Mulitmeter mainframe when imported with the tunable laser source module is classifiable as instruments and apparatus for measuring or checking quantities of heat, sound or light; other instruments and apparatus using optical radiations (ultraviolet, visible, infrared); electrical, in subheading 9027.50.40, HTSUS.

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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