CLA-2 RR:CR:GC 962947 KBR
Port Director
U.S. Customs Service
10 Causeway St., Suite 603
Boston, MA 02222-1059
RE: Protest 0401-99-100094; Tunable Laser Diode Sources
Dear Port Director:
This is our decision on protest 0401-99-100094 filed by counsel on behalf of Photonetics, Inc, against your action regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the “Tunics” brand of tunable laser diodes. The entries under protest were liquidated on January 8, 1999, and this protest was timely filed on April 8, 1999.
FACTS:
The instruments are tunable laser diode sources under the brand name “Tunics”, manufactured in France by Photonetics, Inc. The articles are complete instruments which produce a tunable coherent light used for testing fiber-optic cable systems in the telecommunications and fiber-optics industries.
The instruments are composed of optical and electrical components contained in a metal case. The optical components include an optical bench, a laser diode chip, focusing lenses, collimating lenses, isolators, prisms, diffraction grating mirrors, and optical fiber cable. The electrical components include a central processing unit, mainboard, current control board, and a power supply.
In preparing this decision, consideration was given to arguments presented by counsel for the protestant in a meeting with representatives of this office on October 3, 2000, as well as a supplemental submission dated November 1, 2000.
ISSUE:
What is the classification under the HTSUS for tunable laser diodes?
LAW AND ANALYSIS:
The protestant claims that the tunable laser diode sources should be classified in the provision for diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof: Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes: Light-emitting diodes (LED’s); under subheading 8541.40.20, Harmonized Tariff Schedule of the United States (HTSUS). Customs classified them under subheading 9013.80.90, HTSUS, which provides for other optical instruments and devices.
Classification of merchandise under the HTSUS 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 HTSUS headings and subheadings under consideration are as follows:
Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof:
Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes:
Light-emitting diodes (LED’s)
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:
9013.20.00 Lasers, other than laser diodes
Other devices, appliances and instruments:
Other.
Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
Other optical instruments and appliances:
Other:
Other
In understanding the language of the HTSUS, 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 HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Heading 8541 includes diodes, transistors and similar semiconductor devices, and light-emitting diodes. EN 85.41(C) defines light-emitting diodes as “devices which convert electric energy into visible, infra-red or ultra-violet rays. They are used, e.g., for displaying or transmitting data in control systems.” EN 85.41(C) also defines laser diodes as an article which will “emit a coherent light beam and are used, e.g., in detecting nuclear particles, in altimetering or in telemetering equipment, in communication systems using fibre optics.”
In NEC Electronics, Inc. v. U.S., 144 F. 3d 788 (CAFC May 19, 1998), the court in upholding the Customs Service decision, found that laser diodes modules were classifiable under subheading 8541.40.20, HTSUS. In NEC the court found that pursuant to GRI 3(b), goods comprised of different components must be classified as though they were wholly made of the material or component which gives them their essential character. The court found that the laser diode component gave the laser diode module its essential character. Customs has since followed this finding for similar products. See HQ 960815 (July 1, 1998).
However, the subject tunable laser diode instrument is not similar to the article in NEC. In this case the article is not simply a ‘component’ as was the situation in NEC, but a fully finished testing device for optical cable. The tunable laser diode instrument in the instant case is a more complex article. The laser diode is tunable containing more optical components than incorporated in the article in NEC, including focusing lenses, collimating lenses, prisms, diffraction grating mirrors, isolators, etc. The optical components are not merely subsidiary components. Further, in reviewing the sales materials from the protestant, they often reference the optical components, obviously demonstrating their importance and non-subsidiary nature.
In HQ 957966 (October 31, 1995), a case involving laser diodes and optical elements, Customs found that “the evidence does not support classification as a laser.” Customs found that the optical elements were “a critical component” and “cannot be considered subsidiary”. Id.
Further, heading 8541, HTSUS, is inappropriate where the article is complex and combined with goods of other headings. Customs, in HQ 962957 (October 23, 2000), held that heading 8541, did “not include combinations of goods from two or more distinct groups enumerated in heading 8541, or combination of goods of heading 8541 and another heading, when the combination of goods do not contribute to a single function covered by a single group enumerated in heading 8541. Thus, [the combined components] are excluded from classification in heading 8541.” (citing ABB Transmission v. United States, 19 CIT 1044, 896 F. Supp. 1279 (1995). In this case the protestant is combining optics and a laser diode to create an article outside the scope of heading 8541, a testing device for optical cable. Therefore, we find that heading 8541, does not apply.
Note 1(m) of Section XVI of the HTSUS, provides that "this section [which includes chapter 85 and thus subheading 8541.40.20, HTSUS] does not cover . . . Articles of Chapter 90 [including subheading 9013.80.90, HTSUS and subheading 9031.49.90, HTSUS]." Note 1(m) thus states a rule of interpretation that articles which are described in Chapter 90 cannot be classified in Chapter 85. See Sharp Microelectronics Technology, Inc v. United States, 20 C.I.T. 793; 932 F. Supp. 1499; (July 1, 1996).
Additional U.S. Note 3 to Chapter 90 limits the definition of “optical appliance” and “optical instrument” for purposes of the chapter to those 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.” As discussed above, we find that the optical elements in the tunable laser diode device are not subsidiary. Therefore, this article should be classified in chapter 90.
The protestant seeks to limit “optical instrument” to articles that “aid or enhance human vision”. The protestant states that the light produced by the laser diodes in the Tunics instrument is never visible to the human eye. Further, the protestant cites Celestaire, Inc. v. United States, 120 F.3d 1232 (CAFC 1997), for the requirement that in order to be “optical” an article must “aid human vision”. The protestant then points to a three part test used by the court:
whether the device acts on or interacts with light;
whether the device permits or enhanced human vision through the use of one or more optical elements; and
whether the device uses the optical properties of the device in something more than a “subsidiary” capacity.
First, the protestant argues that the definition of “light” is limited to “that portion of the electromagnetic spectrum visible to the human eye.” However, in their original submissions they continually use “light” to describe the output of their laser diode (although they subsequently state, in their additional submission, that that usage of the term is overly broad). A tariff term that is not defined in the HTSUS or ENs is construed in accordance with its common or 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).
Webster’s New Collegiate Dictionary, G. & C. Merriam Co. (1979), defines light as “an electromagnetic radiation in the wavelength range including infrared, visible, ultraviolet, and X-rays….” See also, McGraw-Hill Multimedia Encyclopedia of Science and Technology. The HTSUS consistently uses the term “light” when describing the output of lasers, including that which falls within the ultraviolet and infrared spectrums. In particular, we note that the subheading in which the protestant wishes to classify the instrument, subheading 8541.40.20, HTSUS, uses the term “light”, which they argue is inappropriate, calling these articles “Light-emitting diodes” (emphasis added). EN 85.41(C), states in part, “Light emitting diodes … are devices which convert electric energy into visible, infra-red or ultra-violet rays…. Laser diodes emit a coherent light beam.” (Emphasis added). EN 90.13(2) describes a laser as producing “a coherent light beam (visible or invisible)”. The Court in NEC, supra, cited and agreed with the defining of light in the ENs including ultraviolet and infrared range. Therefore, we find that the term “light” may include visible, infrared and ultraviolet radiation.
The Photonics Dictionary, 46th Edition, Laurin Publishing, defines the “optical spectrum” as the electromagnetic spectrum within the wavelength region extending from the vacuum ultraviolet to the far-infrared. HQ 957966 (October 31, 1995), held an article amplifying transmission wavelengths between 1530 to 1570 nanometers, outside the visible spectrum, was properly classified as an optical instrument under subheading 9013.80.60, HTSUS. The protestant cites HQ 956919 (December 12, 1994), where Customs found that a “Hyper Tunable LD Light Source” was properly classified within subheading 9013.80.60. However, the protestant attempts to distinguish the article in HQ 956919 from the instrument in the current instance because out of seven wavelengths that article could test, one was within the visible spectrum. We do not find this argument persuasive. If you eliminate only the one wavelength within the visible spectrum, you still have the same article yet the protestant would seemingly want to argue that it falls elsewhere under the HTSUS. We find this is clearly an unacceptable outcome.
Second, the protestant claims that the article does not meet the second criteria from Celestaire of enhancing human vision. The Celestaire test actually originated from the decision in Engis Equipment Co. v. United States, 294 F. Supp. 964 (Cust. Ct. 1969). However, the court in Engis criteria is looser; optical instruments only “primarily” not “solely” aid human vision, leaving other uses possible. The court states that “We find no authority … limiting optical measuring instruments to those which express measurements in linear or dimensional units. On the contrary, [in another case] the optical measuring instrument was a temperature measuring device….” The court even diluted the “aid to human vision” test when it explained that you can look to the intended purpose or function of the complete article to determine if it aids vision. It states “it would be reductio ad absurdum to deny a device classification as an optical measuring instrument solely on the ground that its use results in a mathematical conclusion.” The tunable laser diode instrument checks fiber optic cable and converts the non-visible light to a visible result viewed on their meters.
In United States v. Ataka America, Inc., 550 F.2d 1184 (CCPA 1977), using the criteria from Engis, the court specifically states that this criteria is “neither controlling nor exhaustive” and, further, that “[n]one of the foregoing criteria is determinative in every case”. The court in Schott Optical Glass, Inc. v. United States, 468 F. Supp. 1318 (Cust. Ct. 1979), suggested that the test is not only aiding human vision, but only being “capable of performing an optical function” – aiding human vision being only one possibility.
Customs has consistently held that the requirement of instruments and appliances to be classified as optical only when they aid or enhance human vision is no longer valid based upon the advancement of technology. See HQ 954682 (July 14, 1994); HQ 953312 (June 17, 1993); HQ 952000 (January 28, 1993); HQ 080294 (April 21, 1989).
Two headings within chapter 90 are under consideration, heading 9013 and heading 9031. Heading 9013 includes inter alia, lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in chapter 90. Heading 9031 includes measuring or checking instruments, appliances and machines, not specified or included elsewhere in chapter 90.
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 95796 (October 31, 1995).
Customs previously found in HQ 956919 that tunable laser diode modules were classified under subheading 9013.80.60, HTSUS (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, HTSUS, 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, HTSUS, it was classifiable under subheading 9013.80.60, HTSUS (now subheading 9013.80.90, HTSUS). See NY 873993 (May 27, 1992). In another recent decision, HQ 962893 (March 5, 2001), Customs affirmed this position finding that an almost identical tunable laser diode device to the Tunics instruments was classified under subheading 9013.80.90, HTSUS.
In this situation, the Tunics tunable laser diode instruments are similar to the prior tunable laser decisions. The Tunics devices are self contained instruments designed to be used in conjunction with other instruments such as oscilloscopes, optical spectrum analyzers, and SONET/SDH testers for checking optical communications systems, optical amplifiers and fiber optic components. However, although it is intended to be used “in conjunction with” measuring instruments, the instrument themselves do not perform any measuring or checking function. There also is no evidence that the tunable laser diode instruments are imported together with any measuring or checking instruments.
Chapter note 5 to Chapter 90 states that “[m]easuring or checking optical instruments, appliances or machines which, but for this note, could be classified both in heading 9013 and in heading 9031 are to be classified in heading 9031.” The terms “measuring “ or “checking” are not defined in the HTSUS nor in the ENs. In United States v. Corning Glass Works, 66 CCPA 25,27, 586 F.2d 822, 825 (1978), the court quoted Webster’s Third New International Dictionary, 381 (1971), “’Check’ is defined as “to inspect and ascertain the condition of, especially in order to determine that the condition is satisfactory; … investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of …; to investigate and make sure about conditions or circumstances….”
The term “measure” is defined as follows: “[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount …; measure the dimensions of; take the measurements of …; to compute the size of ... from dimensional measurements.” Webster’s Third New International Dictionary, 1400 (1971). See HQ 954682 (July 14, 1994); HQ 950196 (January 8, 1992); 960429 (August 19, 1998); HQ 088025 (January 17, 1991).
In this case, pursuant to the information provided by the protestant, although the Tunics devices are instruments intended to be used in the telecommunications and fiber-optics industry for testing fiber-optics cable systems, we find that the article does not “measure” or “check”, but rather the instrument produces light. Therefore, heading 9031, HTSUS, is not appropriate.
Therefore, we find that the correct classification of the Tunics instrument is an optical appliance and instrument, not specified or included elsewhere in the chapter in subheading 9013.80.90, HTSUS.
HOLDING:
The Tunable Laser Diode Sources are classifiable under subheading 9013.80.90, HTSUS, as an other optical appliances and instruments, not specified or included elsewhere, other, other.
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, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division