CLA-2 CO:R:C:M 953826 RFA
Ms. Sandra Liss Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016
RE: Himawari Sunlight Collection and Transmission System; Other
Optical Appliances and Instruments; Lamp and Lighting
Fittings; Non-Electrical Lamp; U.S. Additional Note 3 to
Chapter 90; Section XVI, Legal Note 1(m); Heading 9013; ENs
94.05, 90.31; HQs 088628, 952000; HQ 952744, affirmed
Dear Ms. Friedman:
This is in response to your letter dated April 5, 1993,
requesting reconsideration of HQ 952744, dated January 5, 1993,
in which we classified the Himawari Sunlight Collection and
Transmission System under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The merchandise, labeled as the Himawari Sunlight Collection
and Transmission System ("Himawari System"), consists of an
acrylic dome, a sun collector (a series of Fresnel lenses
arranged in a honeycomb pattern and mounted in a housing), a sun
sensor, a light receiving component, a rotation motor, and a
control unit. The fiber optic cables attached to the Himawari
System are cut to specific lengths to run through the building
into which it is to be installed.
The Himawari System is designed to transmit sunlight from
the outside to indoor locations. When sunlight passes through
the Fresnel lens, chromatic aberration occurs, causing different
wavelengths of sunlight--ultraviolet, visible, and infrared
(heat)--to be at different distances from the lens. The fiber
optic cables are placed at the focus point of the visible light
rays, allowing only the visible light rays to enter into the
optic fiber. As a result of this placement of the cables, most
of the ultraviolet radiation and infrared radiation are eliminated. The fiber optic cables then transmit the visible
light to a fixture which is a reflector, not a bulb or similar
item, located inside a structure.
The Himawari System, which works only in daylight, has an
internal clock mechanism used to calculate the position of the
sun; the rotation motor moves the Himawari's lenses in the
direction of the sun throughout the course of the day. After
sunset, the Himawari System shuts off and re-positions itself for
the next morning sunrise.
In HQ 952744, we held that the Himawari System was
classifiable as other optical appliances or instruments under
subheading 9013.80.60, HTSUS. You believe that the proper
classification is as a non-electrical lamp or light fitting under
subheading 9405.50.40, HTSUS, or in the alternative, as other
machines and mechanical appliances not specifically provided for
elsewhere under subheading 8479.89.90, HTSUS.
ISSUE:
Is the Himawari System classifiable as other optical
appliances or devices or as a non-electrical lamp or lighting
fitting under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
You state that the Himawari System is more specifically
provided for as lamps and lighting fittings because the subject
merchandise meets the criteria set forth in the Harmonized
Commodity Description and Coding System Explanatory Notes (EN)
94.05. The ENs constitute the Customs Cooperation Council's
official interpretation of the HTSUS. While not legally binding,
the ENs provide a commentary on the scope of each heading of the
HTSUS and are generally indicative of the proper interpretation
of these headings. EN 94.05, page 1581, states "[l]amps and
lighting fittings of this group can be constituted of any
material. . .and use any source of light". The question to be
resolved is whether the Himawari System constitutes a lamp and
lighting fitting.
In Rico Import Co. v. United States, Slip Op. 92-146, dated
August 27, 1992, the court stated that "[i]t is well settled that
tariff acts must be construed to carry out the intent of the
legislature." See Nippon Kogasku (USA), Inc. v. United States, 69
CCPA 89, 92, 673 F.2d 380, 382 (1982)(citing Sandoz Chem. Works,
Inc. v. United States, 43 CCPA 152, 156, C.A.D. 623 (1956)). The
first place to look to establish the intent of Congress is the
language of the statute itself. Consumer Prod. Safety Comm'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The court may
resolve ambiguities in the plain language of a statute by
resorting to legislative history and other extrinsic sources.
Sandoz Chem. Works, 43 CCPA at 156.
A tariff term that is not defined in the HTSUS or in the
EN's is construed in accordance with its common and commercial
meaning. Nippon Kogasku (USA), 69 CCPA 89, 673 F.2d 380 (1982).
Common and commercial meaning may be determined by consulting
dictionaries, lexicons, scientific authorities and other reliable
sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673
F.2d 1268 (1982).
In Morris Friedman & Co. v. United States, 73 Cust.Ct. 112,
115, C.D. 4561 (1974), aff'd, 63 CCPA 5, C.A.D. 1156, 524 F.2d
745 (1975), the Customs Court consulted various dictionaries to
determine that the common meaning of the term "lamp" is "any
contrivance which affords a means of producing light". We
checked other sources and have found similar definitions. In
volume 9 of the McGraw-Hill Encyclopedia of Science & Technology,
6th Ed., page 553, lamp is defined as:
A generic term for any artificial source of light. The
term lamp is applied to the entire range of sources,
including flame sources. . ., incandescent sources, and
electric arc discharge sources. Used with a modifier,
such as ultraviolet, infrared, or sun, the term lamp is
used to indicate sources that radiate energy in the
ultraviolet or infrared portions of the electromagnetic
spectrum (plus some radiation in the visible part of
the spectrum).
You also cited to Webster's Third New International Dictionary,
page 1267, for the definition of lamp as: "a light-giving device;
. . . any of various other devices that produce artificial
light".
The Himawari System collects sunlight from outside a
structure and transmits the energy of visible sunlight through
optic cables to a reflector (the lighting element). The Himawari
System is merely a transmitter of sunlight or energy to a
reflector which is the lighting element or lamp which produces
and provides the illumination for a room. Based upon these
definitions, we find that the reflectors for the Himawari System
which are not imported, meet the definition of the term "lamp".
The Himawari System itself is not the lamp because it does not
produce light but merely transmits existing sunlight to the
reflectors.
Citing numerous court cases under the Tariff Schedule of the
United States (TSUS, the predecessor of the HTSUS), you indicate
that the merchandise cannot be classified as other optical
instruments and appliances under heading 9013, HTSUS, because the
Himawari System does not aid or enhance human vision. In
defining optical instruments, EN 9031.40, page 1533, states:
[t]his subheading covers not only instruments and
appliances which provide a direct aid or enhancement to
human vision, but also other instruments and apparatus
which function through the use of optical elements or
processes.
In HQ 952000, dated January 28, 1993, Customs stated that
the "restrictive interpretation limiting the terms 'optical
instruments' or 'optical appliances' to instruments which aid
human vision is based on outdated notions. Because of
advancements in technology in the field of optics, many apparatus
operate through the use of optical elements." Thus, the fact
that the Himawari System does not provide a direct aid or
enhancement to human vision does not take it beyond the scope of
heading 9013, HTSUS.
Additional U.S. Note 3 to chapter 90 provides as follows:
"For the purposes of this chapter, the term 'optical appliances'
and 'optical instruments' refer only to those appliances and
instruments which incorporate one or more optical elements [e.g.,
lens], 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." In HQ
088628, dated August 20, 1991, Customs defined the term
"subsidiary" as "[s]erving to supplement or assist . . .
[s]econdary in importance: subordinate." See Webster's II New
Riverside University Dictionary, 1155 (1984).
The Himawari System incorporates one or more optical
elements, the Fresnel lenses and the fiber optic cables. These
optical elements are not subsidiary. Without the Fresnel lenses
and the fiber optic cables, the Himawari System could not collect
and transmit sunlight into a building structure. The optical
elements of the Himawari System are essential to transmitting
sunlight. Therefore, we find that the Himawari System is an
optical appliance and instrument. The Himawari System is
classifiable under subheading 9013.80.60, HTSUS, as other optical
appliances and instruments. You suggest classification under
heading 8479, HTSUS, as a machine not elsewhere specified.
Section XVI, Legal Note 1(m) states as follows: "[t]his section
does not cover: [a]rticles of chapter 90. Because the Himawari
System is provided for under chapter 90, classification under
chapter 84 is precluded by operation of Section XVI, Legal Note
1(m).
HOLDING:
The Himawari System is classifiable under subheading
9013.80.60, HTSUS, which provides for optical appliances and
instruments. The general, column one rate of duty is 9.0 percent
ad valorem.
EFFECT ON OTHER RULINGS:
HQ 952744, dated January 5, 1993, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division