United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 966934 - HQ 967036 > HQ 966954

Previous Ruling Next Ruling
HQ 966954




April 30, 2004

CLA-2 RR:CR:GC 966954 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.9000

Paul O’Donnell
Engineering Manager
Intelligent Well Systems
Luna Energy
309 North Knollwood Drive
Blacksburg, VA 24060

RE: Altowave 1300 Tunable Laser Module

Dear Mr. O’Donnell:

This is in reference to your letter, dated August 14, 2003, to the Bureau of Customs and Border Protection, Director, National Commodity Specialist Division, New York, in which you requested a binding ruling, returned to you for additional information by letter dated August 25, 2003, and resubmitted by you, dated January 2, 2004. The binding ruling request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a tunable laser module, the Altowave 1300 (also called the INTS1300) manufactured by Intune Technologies. The binding ruling request was referred to this office for reply.

FACTS:

The article involved is a tunable laser module manufactured by Intune Technologies, Ltd., originally named the INTS1300 but now renamed the Altowave 1300. You describe the article as a fast wavelength sweeping tunable laser source with 80 nm coverage. It is a solid-state tunable laser, electronics and embedded firmware to control and tune the laser, and a metal enclosure with a fiber optic output. You state that you intend to use the Altowave 1300 as one component in a precision instrument for measuring pressure and temperature in oil and natural gas wells. You are currently calling your device a “Surface Instrumentation Unit” (SIU), which is part of measurement system which also includes a fiber optic cable and a fiber optic sensor. You state the SIU would be placed near a well-head of an oil or gas producing well and is connected by fiber optic cable to a sensor which is typically located at the bottom of a well. You state the SIU would use the Altowave 1300 to send a narrow-band light at 1024 incremental wavelengths over the range of the laser’s bandwidth. In a typical application, the SIU sends a narrow-band light via the optical fiber to the fiber optic sensor. The sensor, which affects the characteristics of the light with respect to changes in pressure and temperature, reflects the light. The SIU detects the reflected light. Although you state that the Altowave 1300 was developed to Luna Energy’s specifications, you also indicate that the Altowave 1300 could be sold to others, not only Luna Energy. Further, you state that the Altowave 1300 could be used for purposes other than Luna Energy’s pressure and temperature sensing applications, such as gas analysis.

ISSUE:

What is the classification under the HTSUSA for the tunable laser module?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA 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 HTSUSA 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:

9013.80.9000 Other.

9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manmeters, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof:

9026.90 Parts and accessories:

9026.90.6000 Other

In understanding the language of the HTSUSA, 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 HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Two headings within chapter 90 are under consideration, heading 9013 and heading 9026. Heading 9013, provides, in pertinent part, lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in chapter 90. Heading 9026, provides, in pertinent part, instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases.

The article involved in the instant decision is a tunable laser module intended to be incorporated into Luna Energy’s SIU.

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).

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

Customs previously found that stand alone, bench-top tunable laser diode sources were classified under subheading 9013.80.90, HTSUSA. 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, HTSUSA, 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, HTSUSA, 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, HTSUSA, it was classifiable under subheading 9013.80.90, HTSUSA. See NY 873993 (May 27, 1992).

You argue that the Altowave 1300 should be classified in heading 9026, HTSUSA, as parts of instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases. In HQ 965906 (December 20, 2002), Customs revoked a ruling classifying a tunable laser source module in heading 9013, HTSUSA, and instead classified it in heading 9027, HTSUSA, as parts of instruments and apparatus for measuring or checking quantities of heat, sound or light. See also HQ 965639 (September 12, 2002) and HQ 965640 (September 12, 2002). Unlike the tunable laser of HQ 962947, HQ 962980, HQ 962893 or HQ 956919, however, the tunable laser module in HQ 965906, HQ 965639 and 965640, were designed and dedicated for use in a particular instrument and could not be used outside of that instrument. In classifying the products outside of heading 9013, and as part of the host apparatus, Customs relied on note 2(b) to chapter 90, which 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

In the instant case, however, the Altowave 1300 is not dedicated for use in just one instrument. Although you state that the Altowave 1300 was developed to Luna Energy’s specifications, you have no proprietary rights to the article – it may be sold to any other buyer who comes along. While you are using the Altowave 1300 only as a part of the SIU, you acknowledge that the Altowave 1300 could be used for various other applications. You state “[t]he manufacturer of the Altowave 1300 touts this product as useful for other applications such as gas analysis. It very well may be.” The manufacturer’s web site describes the article’s applications as including “multi-species gas analysis”, and that the Altowave 1300 can be “customised [sic]” which “allows a variety of test methodologies to be developed by the user.” Therefore, because the Altowave 1300 is not “for use solely or principally” with just one machine, note 2(a) rather than note 2(b) to chapter 90 is applicable. Therefore, pursuant to the discussion above, we find that the Altowave 1300 tunable laser module is classified under heading 9013, HTSUS, as other optical appliances and instruments, not specified or included elsewhere in this chapter, parts and accessories thereof.

HOLDING:

The tunable laser source module is classifiable in subheading 9013.80.9000, HTSUSA, as a 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, other. The 2004 column one general rate of duty is 4.5% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: