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HQ 966938




September 27, 2004

CLA-2 RR:CR:GC 966938 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8539.49.0040

Jim Mason
Ball Aerospace and Communications Group
P.O. Box 1062
Boulder, CO 80306-1062

RE: Reconsideration of NY 802823; Calibration Lamps

Dear Mr. Mason:

This is in reference to New York Ruling Letter (NY) 802823, issued to you by the Customs National Commodity Specialist Division, New York, on October 31, 1994. That ruling concerned the classification of two calibration lamps [one krypton lamp and one deuterium lamp] designed for use with the Hubble Space Telescope, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed NY 802823 and determined that the classification provided for the calibration lamps is incorrect.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on August 18, 2004, in Vol. 38, No. 34 of the Customs Bulletin, proposing to revoke NY 802823. No comments were received in response to this notice.

FACTS:

NY 802823 concerned two calibration lamps, one krypton lamp and one deuterium lamp, designed for use with the Hubble Space Telescope. The Space Telescope Image Spectrograph (STIS) was being developed for installation in the Hubble Space Telescope during a 1997 servicing mission. The STIS has the ability to calibrate itself during down time of the Hubble Space Telescope through a series of calibration subsystems installed into the STIS. The calibration lamps are part of the calibration subsystems. The subsystems contain all of the optics and the mechanical systems for relaying the ultraviolet radiation into the instrument for calibration. None of the optics are in the lamps themselves.

The krypton and deuterium lamps allow the Hubble Space Telescope to be calibrated from within during the times when the telescope is shut down, rather than using a known light source in space. The lamps provide illumination over continuous wavelength bands in the ultraviolet range. The krypton lamp’s emissions cover the wavelengths from 130 nm to 160 nm. The deuterium lamp’s emissions cover the wavelengths from 160 nm to 310 nm.

Both the krypton lamp and the deuterium lamp are gas-filled bulbs and electronics, mounted in an aluminum tube. An RF electronics circuit excites the gas in the bulb forming the gas into a plasma. The deuterium lamp also requires a heater and heater circuit which heats a pellet that absorbs the deuterium when the lamp is not operating. An optional trigger circuit and high voltage transformer were to be included in the krypton lamp if it was difficult to start. Each lamp is a self contained unit, totally enclosed within its own glass envelope. Therefore, each calibration lamp retains its own identity even though inserted into the STIS.

In NY 802823, it was determined that the krypton lamp and deuterium lamp were classified in subheading 9031.90.5500, HTSUSA, which provides for parts and accessories of other optical measuring or checking instruments and appliances, other.

We have reviewed NY 802823 and determined that the classification of the krypton and deuterium calibration lamps is incorrect. This ruling sets forth the correct classification.

ISSUE:

What is the classification of the subject krypton and deuterium calibration lamps under the HTSUSA?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, merchandise is classifiable according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In interpreting the headings and subheadings, Customs and Border Protection (“CBP”) looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUSA. It is CBP practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

8539 Electrical filament or discharge lamps, including sealed beam lamp units and ultraviolet or infrared lamps; arc lamps; parts thereof:

Ultraviolet or infrared lamps; arc lamps:

8539.49.00 Other

8539.49.0040 Ultraviolet lamps

9031 Measuring or checking instruments, appliances and machines, not specified or included elswhere in this chapter; profile projectors; parts and accessories thereof::

9031.90 Parts and accessories:

Of other optical instruments and appliances, other than test benches:

9031.90.5800 Other

One of the headings under consideration is 8539, HTSUSA, which includes ultraviolet lamps. The ENs for heading 8539 describe “ultra-violet lamps” as:
used for medical, laboratory, germicidal or other purposes. They usually consist of a fused quartz tube containing mercury; they are sometimes enclosed in an outer envelope of glass. Some are known as black light lamps (e.g., those used for theatrical purposes).

The instant calibration lamps produce ultraviolet light for use in calibrating the STIS on the Hubble Space Telescope which clearly falls within this EN description of an ultraviolet lamp of heading 8539, HTSUSA.

In NY 802823, CBP found that the calibration lamp was classified in heading 9031, HTSUSA, as a part and accessory of other optical measuring or checking instruments and appliances. However, in considering heading 9031, HTSUSA, we must first consider the relevant Section and Chapter Notes. Note 2(a) to chapter 90 states:

Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings

Note 2(b) to chapter 90 states:

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

See also similar language in the Section Notes for headings 8539 at Section XVI Note 2(a) and (b). The ENs for Section XVI at General, (II) Parts (Section Note 2), states that “parts which in themselves constitute an article covered by a heading of this Section; these are in all cases classified in their own appropriate heading even if specially designed to work as part of a specific machine.” The EN then specifically lists at (14) Lamps of heading 85.39. The ENs for chapter 90 at General, (III) Parts and Accessories (Chapter Note 2), (1), gives similar guidance, stating that “[f]or example, lamps remain in Chapter 85.” Applying Note 2(a), to the instant calibration lamps will classify the articles in their own right, not as a part or accessory.

The EN language for Section XVI Note 2 was cited by the court in Nidec Corp. v. United States, 861 F. Supp. 136 (CIT 1994), aff’d. 68 F.3d 1333 (Fed. Cir. 1995). The court, applying the EN for Section XVI Note 2, determined that if a good can be classified in its own heading in accordance with Legal Note 2(a), then classification as a part under Legal Note 2(b) is inappropriate. See also HQ 962946 (May 1, 2000), HQ 952026 (July 23, 1992), HQ 963219 (February 5, 2001). Therefore, applying the court’s reasoning to the instant calibration lamps, we apply Note 2(a) to chapter 90, which directs classification of the articles in their own appropriate heading, heading 8539, HTSUSA, and not as a part or accessory.

In this case, as discussed above, the calibration lamps are classified pursuant to chapter 90, Note 2(a) in heading 8539, HTSUSA, as lamps. Therefore, classification as a part of measuring or checking instruments, appliances and machines, not specified or included elsewhere in chapter 90, under chapter 90, Note 2(b) is precluded.

HOLDING:

By application of Note 2(a) to chapter 90, the calibration lamps are classified in heading 8539, HTSUSA. The krypton and deuterium ultraviolet lamps intended for use in the STIS for the Hubble Space Telescope are specifically provided for in subheading 8539.49.0040, HTSUSA, as electrical filament or discharge lamps, including sealed beam lamp units and ultraviolet or infrared lamps; arc lamps; parts thereof; ultraviolet or infrared lamps; arc lamps; other; ultraviolet lamps. The 2004 column one, general rate of duty rate is 2.4% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY 802823 dated October 31, 1994, is REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective sixty (60) days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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