CLA-2 CO:R:C:M 950629 MBR
District Director
U.S. Customs Service
909 First Ave., Rm 2039
Seattle, WA 98174
RE: Protest Number 3001-91-100962; Astra III; Marine Sextants;
Other Navigational Instruments and Appliances
Dear District Director:
This is in response to the Application for Further Review of
Protest Number 3001-91-100962, dated September 5, 1991, on behalf
of Celestaire, Inc., regarding classification of the "Astra III"
Marine Sextant, under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The instant "Marine Sextants" are used to measure the angle
of celestial bodies from a position on the earth and the horizon,
for navigational purposes. The submitted sample has two mirrors,
seven high quality colored glass optical filters, a sight tube and
a telescopic sight. The importer states that the sextant is
principally used with the telescopic sight.
ISSUE:
Are the instant "Marine Sextants" classifiable under
subheading 9014.80.10, HTSUS, which provides for navigational
instruments that are optical, or, as the importer argues, is
classification appropriate under subheading 9014.80.50, HTSUS,
which provides for other instruments and appliances, other, other?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
-2-
The marine sextants were classified under subheading
9014.80.10, HTSUS, which provides for: "[o]ther navigational
instruments and appliances: [o]ther instruments and appliances:
[o]ptical instruments." The protestant claims that the merchandise
is properly classifiable under subheading 9014.80.50, HTSUS, which
provides for: "[o]ther navigational instruments and appliances:
[o]ther instruments and appliances: [o]ther: [o]ther: [o]ther."
HQ 085235, dated November 16, 1989, which was issued to the
protestant, held that marine sextants were classifiable in
subheading 9014.80.10, HTSUS. Counsel argues erroneously that
there is a uniform and established practice classifying marine
sextants under subheading 9014.80.50, HTSUS, and that "Celestaire,
Inc. has not previously received an adverse administrative decision
from the Commissioner of Customs or her designee." However, HQ
085235 is clearly an adverse administrative decision on
substantially identical merchandise, and, consequently, if a
practice were found to exist, it would be under subheading
9014.80.10, HTSUS, pursuant to HQ 085235, issued to the protestant.
Counsel also argues that the filters and mirrors are not
"optical" because they have not been "optically worked." However,
the court in Schott Optical Glass, Inc. v. United States, 11 CIT
899 (1987), stated: "In affirming the decision of the trial court,
the court of appeals in Schott I adopted the indicia of optical
glass as determined by the trial court. The court held the colored
glass entries, which were of very high or the highest available
quality in glass chosen for its absorption properties, were
properly classified as optical glass for tariff purposes."
Furthermore, the court of appeals concluded that "[w]hen a glass
is selected for a particular property, the proper inquiry is
whether the glass is of high quality with respect to that property,
and the quality with respect to other properties is immaterial."
The submitted literature regarding the Astra IIIB Sextant states:
"It is illuminated, and has crystal clear optics, with a 3.5 X 40
telescope....For example, each mirror and shade glass is tested for
perfect flatness by the Fresnel diffraction pattern method." The
Customs Service is convinced that the Celestaire sextants utilize
high quality optics.
Chapter 90, Additional U.S. Note 3 delineates what "optical
instrument" are, for tariff purposes, when it states:
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, but do not include any appliances or
instruments in which the incorporated optical element or
elements are solely for viewing a scale or some other
subsidiary purpose.
-3-
Counsel argues that the telescopic sight is used for a
"subsidiary purpose," such as sighting objects to be viewed.
However, Customs finds the telescopic sight to be an integral
element in the function of the sextant, as are the colored glass
filters. Therefore, the "Astra III" Marine Sextant is an optical
instrument, with optical elements, and is properly classifiable in
subheading 9014.80.10, HTSUS.
HOLDING:
The Celestaire, Inc., "Astra III" Marine Sextants are properly
classifiable under subheading 9014.80.10, HTSUS, which provides
for: "[o]ther navigational instruments and appliances: [o]ther
instruments and appliances: [o]ptical instruments."
The protest should be denied in full. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division