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HQ 965640




September 12, 2002

CLA-2 RR:CR:GC 965640 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.90.54

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

RE: Protest 4701-02-100490; Tunable Laser Source Modules

Dear Port Director:

This is our decision on protest 4701-02-100490 filed by Agilent Technologies, against your action regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of tunable laser 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 tunable laser source modules, model #81680A, 81640A, 81642A and 81682A. These articles are intended to be used with the Lightwave Measurement System, Models 8164A and 8164B.

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 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 of the Agilent Lightwave Multimeter.

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 Multimeter 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, fiber bragg gratings or thin film filters.

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. It has a color display and a 3.5 inch floppy drive.

However, the only article at issue in this protest is the tunable laser source module. 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 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 the parts provision thereof under subheading 9027.90.54, HTSUS.

ISSUE:

What is the proper classification under the HTSUS for the 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.

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.

The article involved in this protest is a tunable laser source module intended to be incorporated into Agilent’s Lightwave Multmeter mainframe unit. Customs found that the Lightwave Multimeter measurement system is classified in subheading 9027.90.50, HTSUS, as instruments and apparatus for measuring or checking quantities of heat, sound, or light. HQ 965639 (September 12, 2002). However, the instant protest involves only the tunable laser source module.

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 stand alone, bench-top tunable laser diode sources were classified under subheading 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).

In the instant protest, however, the articles are only modules. They must be inserted into the mainframe unit and cannot stand alone. The instant tunable laser source module does not have a power source, a central processing unit (CPU), controls, application software, or displays. The design and connections of the instant article allow it to be incorporated only into the Lightwave Multimeter mainframe unit.

Note 2(b) to chapter 90 states that:

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

Therefore, because the tunable laser source module cannot function outside of the mainframe unit, we find that the tunable laser source module is a part for use solely with the Lightwave Multimeter measurement system. Therefore, pursuant to the discussion above and the classification of the Lightwave Multimeter measurement system in HQ 965639, we find that the correct classification of the Agilent tunable laser source module is as a part of an instrument or apparatus for measuring or checking quantities of heat, sound or light; classifiable in subheading 9027.90.54, HTSUS.

HOLDING:

The tunable laser source module is classifiable in subheading 9027.90.54, HTSUS, as a part of an instrument or apparatus for measuring or checking quantities of heat, sound or light.

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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