# HQ 962947

March 12, 2001

**CLA-2** RR:CR:GC 962947 KBR

**CATEGORY:** Classification

**TARIFF NO.:** 9013.80.90

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:

8541. 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:

      40. Photosensitive semiconductor devices, including photovoltaic
          cells whether or not assembled in modules or made up into
          panels; light-emitting diodes:

          20. Light-emitting diodes (LED's)

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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:

9013.20.00 Lasers, other than laser diodes

80. Other devices, appliances and instruments:

    90. Other.

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9031. 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:

49. Other:

    90. 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:

1)  whether the device acts on or interacts with light;

2)  whether the device permits or enhanced human vision through the use
    of one or more optical elements; and

3)  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]{.underline}-emitting diodes" (emphasis added).
EN 85.41(C), states in part, "*[Light]{.underline}* emitting diodes ...
are devices which convert electric energy into visible, infra-red or
ultra-violet rays.... Laser diodes emit a coherent *[light]{.underline}*
beam." (Emphasis added). EN 90.13(2) describes a laser as producing "a
coherent *[light]{.underline}* 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*, 46^th^ 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](http://www.customs.gov/), by means of the Freedom of
Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division