CLA-2 R:C:M 957966 RFA
Port Director
U.S. Customs Service
P.O. Box 619050
Dallas/Fort Worth, TX 75261
RE: Protest 5501-94-100368; Optical Amplifiers; Lasers; Erbium-Doped Optical Fiber; Laser Diode; Cable Television; Transmission Apparatus; Optical Instruments and Optical Appliances; Subsidiary; Headings 8517, 8525, 8543, 9013; Additional U.S. Note 3 to chapter 90; Legal Note 1(m) to Section XVI; EN 90.13; HQs 088628, 088941, 953516, 955114, 955230 and 956919
Dear Port Director:
The following is our decision regarding Protest 5501-94-100368, which concerns the classification of parts of optical amplifiers under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision, we considered subsequent submissions by counsel for protestant, of July 27, October 11 and 18, 1995.
FACTS:
The subject merchandise is described on the invoices as "optical amplifiers". Optical amplifiers are designed to extend the range (i.e., amplify) of any type of optical signal transmitted via a single mode optical fiber cable. The usefulness of optical fiber amplifiers has been demonstrated in a variety of applications, including long haul fiber optic telecommunication systems, optical cable television systems, optical distribution networks, and analytical instrumentation with the optical time domain reflectometers.
In the past, conventional repeaters would convert weakened optical signals to electrical signals, reshape and amplify the electrical signal and then convert the signal back to an amplified optical signal. Instead of converting the optical signal into an electrical signal to boost or amplify it, the optical amplifier boosts the signal photonically by making a weak light signal stronger. The optical amplifier contains an erbium (a rare earth element) doped optical fiber and a solid-state laser pump (a laser diode). The laser pump "excites" the electrons in the doped fiber, raising the electrons to a higher energy state. The incoming weak light signals are then introduced into the doped fiber causing the electrons to give up their extra charge of energy to the signal. It then matches the incoming weak signal's wavelength and phase resulting in an exactly corresponding amplified outgoing optical signal. The light signal is then retransmitted by optical fiber for another 40-60 kilometers, where the process is repeated again. The optical amplifier is capable of amplifying optical transmissions between the wavelengths of 1530 to 1570 nanometers (nm).
The merchandise was entered under subheading 9013.20.00, HTSUS, as lasers. The entries were liquidated on August 19 and 26, September 2, 9,16,23, and 30, October 7, 14, 21, and 28, 1994, under subheading 8517.81.00, HTSUS, as other telephonic apparatus. The protest was timely filed on November 9, 1994.
ISSUE:
Is the optical amplifier classifiable as transmission apparatus for telephony or for cable television, or as electrical machines and apparatus, not specified or included elsewhere, or as a laser, or as other optical instruments and apparatus, under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.
The subheadings under consideration are as follows:
8517.81.00: Electrical apparatus for line telephony or telegraphy, including such apparatus for carrier-current line systems. . . : Other apparatus: Telephonic. . . .
Goods classifiable under this provision have a general, column one rate of duty of 8.5 percent ad valorem.
8525.10.20: Transmission apparatus for radiotelephony, radiotelegraphy, radiobroadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras: Transmission apparatus: Television. . . .
Goods classifiable under this provision have a general, column one rate of duty of 3.7 percent ad valorem.
8543.80.98: Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter . . . : [o]ther machines and apparatus: [o]ther: [o]ther. . . .
Goods classifiable under this provision have a column one, general rate of duty of 3.9 percent ad valorem.
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. . . :
9013.20.00: Lasers, other than laser diodes. . . .
Goods classifiable under this provision have a general, column one rate of duty of 3.9 percent ad valorem.
9013.80.60: Other devices, appliances and instruments: [o]ther. . . .
Goods classifiable under this provision have a general, column one rate of duty of 9 percent ad valorem.
Legal Note 1(m) to section XVI, HTSUS, states that: "[t]his section does not cover . . . [a]rticles of chapter 90." If the optical amplifier is classifiable under one of the headings of chapter 90, HTSUS, then it cannot be classifiable under heading 8517, 8525, or 8543, HTSUS.
To classify merchandise as an "optical appliance" or "optical instrument", it must meet the requirements of Additional U.S. Note 3 to chapter 90, HTSUS, which states as follows:
[f]or the purposes of this chapter, the terms "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 for some other subsidiary purpose.
The term "subsidiary" is not defined in the tariff schedule. A tariff term that is not defined in the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes (EN) is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 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 HQ 088941, dated January 16, 1992, Customs, citing Webster's II New Riverside University Dictionary (1984), p. 1155, defined "subsidiary" as "[s]erving to supplement or assist . . . [s]econdary in importance: subordinate." Customs further stated that "[t]he meaning of 'subsidiary' has nothing to do with the amount of time optics are used in the overall use of a device, but it relates more to the type of task which the optics perform when being used in the operation of the device." See also HQ 955230, dated July 12, 1994.
Protestant agrees that the subject merchandise meets the terms "optical instrument" or "optical appliance". However, the protestant believes that the subject merchandise is a "laser" as defined by the ENs for heading 9013, HTSUS. The ENs constitute the 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. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). EN 90.13, pages 1478-1479, states that:
(2) Lasers. These produce or amplify electro-magnetic radiation in the wavelength range between 1 nanometre and 1 millimetre (ultra-violet, visible light and infra-red regions of the spectrum), by the process of controlled stimulated emission. When the lasing medium (e.g., crystals, gases, liquids, chemical products) is excited by the light from an electric source or by the reaction from another source of energy, the light beams which are produced inside the lasing medium are repeatedly reflected and amplified in such a way that a coherent light beam (visible or invisible) is emitted from one end which is partly transparent.
In addition to the lasing medium, the energy source (pumping system) and the resonant optical cavity (reflector system), i.e., the basic elements combined in the laser head (possibly with Fabry-Perot interferometers, interference filters and spectroscopes), lasers generally also incorporate certain auxiliary components (e.g., a power supply unit, a cooling system, a control unit and, in the case of the gas laser, a gas supply system or, in the case of liquid lasers, a tank, fitted with a pump for the dye solutions). Some of these auxiliary components may be contained in the same housing as the laser head (compact laser) or may take the form of separate units, connected to the laser head by cables, etc. (laser system). In the latter case the units are classified in this heading provided they are presented together.
* * * * * * *
Subject to the provisions of Notes 1 and 2 to this Chapter, parts and accessories for lasers, for example, laser tubes, are also classified in this heading. However, this heading does not include electric flash lamps used for pumping, such as xenon lamps, iodine lamps and mercury vapour lamps (heading 85.39), laser diodes (heading 85.41) and laser crystals (e.g., rubies), laser mirrors and lenses (heading 90.01 or 90.02).
We find that the evidence does not support classification of the subject merchandise as a laser. At the time of importation, the merchandise was labeled as an "optical amplifier" capable of amplifying optical signals. Its major components are a laser diode and an erbium-doped optical fiber. A laser diode is capable of producing light whether or not the erbium-doped optical fiber is present. The doped fiber allows the merchandise to boost a weakened optical signal. We believe that the subject merchandise is similar to other laser diode modules (LDMs) which Customs has classified. In HQ 088628, dated August 20, 1991, Customs classified a LDM containing a laser diode, a discrete parabolic rod or similar lens, a photodiode, and fiber pigtail allowing coupling to a fiber optic cable. After determining that the LDM can be used with or without the lenses, indicating that the lenses were subsidiary, Customs concluded that the LDM was not an optical appliance or instrument within the meaning of chapter 90, HTSUS.
However, in subsequent rulings, Customs determined that LDMs which contain lenses which are necessary for the functioning of the LDM are classifiable as an optical appliance or instrument within the meaning of chapter 90, HTSUS. See HQ 953516, dated July 1, 1993; HQ 955114, dated October 19, 1993; and HQ 956919, dated December 12, 1994. In each of the above-cited rulings, Customs has examined the merchandise in its condition as imported and looked at the role the laser diode plays in relation to the optical elements in order to determine whether or not it is classifiable as an optical instrument or appliance.
We find that the optical amplifier meets the terms of Additional U.S. Note 3 to chapter 90, HTSUS. Based upon the submitted literature, we find that the erbium doped fiber, an optical element, is a critical component which needs the interaction of the laser diode to extend the range (i.e., amplify) of any type of optical signal (digital, analog, or pulse) transmitted via a single mode optical fiber cable. Because it is a critical component for the optical amplifier, it cannot be considered subsidiary. This finding is consistent with the holdings in HQs 953516, 955114, and 956919. Therefore, the optical amplifier is classifiable under subheading 9013.80.60, HTSUS, as other optical appliances and instruments. Based upon Legal Note 1(m) to section XVI, HTSUS, classification of the optical amplifier under headings 8517, 8525, and 8543, HTSUS, are precluded because the subject merchandise is provided for in chapter 90, HTSUS.
HOLDING:
The optical amplifier is classifiable under subheading 9013.80.60, HTSUS, which provides for: "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 . . . : [o]ther devices, appliances and instruments: [o]ther. . . . "
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division