# HQ 965639

September 12, 2002

**CLA-2** RR:CR:GC 965639 KBR

**CATEGORY:** Classification

**TARIFF NO.:** 9027.50.40

Port Director

U.S. Customs Service

Building \# 77

JFK International Airport

Jamaica, NY 11430

**RE:** Protest 4701-02-100492; Lightwave Measurement System and Tunable
Laser Source Modules

Dear Port Director:

This is our decision on protest 4701-02-100492 filed by Agilent
Technologies, against your action regarding the classification, under
the Harmonized Tariff Schedule of the United States (HTSUS), of the
Lightwave Measurement System and tunable laser diode source modules. The
entries under protest were liquidated on February 8, 15, and 22, 2002,
and this protest was timely filed on April 18, 2002.

**FACTS:**

The articles involved are the Lightwave Multimeter measurement System,
Models 8164A and 8164B. Also involved are tunable laser diode source
modules, model #81680A, 81640A, 81642A and 81682A.

In preparing this decision, consideration was given to arguments
presented by protestant in a teleconference with representatives of this
office on September 10, 2002, as well as a supplemental submission dated
June 20, 2002.

The Agilent 8164A/B Lightwave Multimeter series is a fiber-optic
multipurpose measurement tool used for testing optical components and
systems. The system measures quantities of light by use of optical
radiation. It sends light to the device being tested and measures the
light that is returned to the 8164A/B lightwave measurement system
mainframe. The 8164A/B characterizes the effects of the device on the
lightwave and displays those effects on the cathode ray tube monitor
contained within the 8164A/B. The 8164A/B is used principally to test
optical components such as multiplexers, demultiplexers, optical
switches, isolators, connectors and amplifiers, during their
manufacture.

The 8164A/B can be used to measure the absorption of light by the tested
device, effects on light wavelength, effects on chromatic dispersion
(the color of light), cross talk (such as when you hear another
conversation on the telephone), and signal power.

The 8164A/B is the mainframe unit and has a plug-in port or slots where
tunable laser sources may be inserted and four slots for hosting power
modules, return loss modules, compact tunable lasers or fixed laser
sources. However, only the mainframe unit and the main tunable laser
source module are involved in this protest. The modules which would be
plugged into the four slots are not involved in this protest. The
8164A/B has a color display and a 3.5 inch floppy drive. The 8164A/B is
used to test devices such as multiplexers, demultiplexers, optical
switches, isolators, connectors and amplifiers, fiber bragg gratings or
thin film filters.

The mainframe is imported with the tunable laser source module. The
tunable laser source module generates low source spontaneous emission
optical output. The tunable laser source module provides a laser output
at a particular laser wavelength that is tunable over a specific
wavelength range. It contains a Fabry-Perot laser diode, optical lenses,
features an external cavity and incorporates various other elements like
a printed circuit board and a coupler. The tunable laser source module
is capable of being controlled remotely or from the front panel of the
mainframe in which it is housed. The tunable laser source module does
not stand alone but must be inserted into a slot in the mainframe.

At entry the Lightwave Multimeter were classified in subheading
9027.50.40, HTSUS, and subsequently liquidated under subheading
9013.80.90, HTSUS. The tunable laser source modules at entry were
classified in subheading 9027.90.54, HTSUS, and subsequently liquidated
under subheading 9013.80.90, HTSUS.

The protestant claims that the Lightwave Multimeter mainframe and
tunable laser source module should be classified in the provision for
instruments and apparatus for measuring or checking quantities of heat,
sound or light; other instruments and apparatus using optical radiations
(ultraviolet, visible, infrared); electrical, under subheading
9027.50.40, HTSUS.

**ISSUE:**

What is the proper classification under the HTSUS for the Lightwave
Multimeter measurement system when imported with a tunable laser source
module?

**LAW AND ANALYSIS:**

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. GRI 2(a) provides in pertinent part that "\[a\]ny
reference in a heading to an article shall be taken to include a
reference to that article incomplete or unfinished, provided that, as
entered, the incomplete or unfinished article has the essential
character of the complete or finished article."

The HTSUS provisions under consideration are as follows:

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:

80. Other devices, appliances and instruments:

9013.80.90 Other.

9027 Instruments and apparatus for physical or chemical analysis for
example, polarimeters, refractometers, spectrometers, gas or smoke
analysis aparatus); instruments and apparatus for measuring or checking
viscosity, porosity, expansion, surface tension or the like; instruments
and apparatus for measuring or checking quantities of heat, sound, or
light (including exposure meters); microtomes; parts and accessories
thereof:

9027.50 Other instruments and apparatus using optical radiations
(ultraviolet, visible, infrared):

9027.50.40 Electrical:

9027.90 Microtomes; parts and accessories:

Parts and accessories:

Other:

54. Of instruments and apparatus of subheading 9027.20, 9027.30,
    9027.40, 9027.50 or 9027.80

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).

> Three headings within chapter 90 are under consideration, heading
> 9013, 9027 and heading 9031. Heading 9013, in pertinent part, includes
> lasers, other than laser diodes; other optical appliances and
> instruments, not specified or included elsewhere in chapter 90.
> Heading 9027, in pertinent part, includes instruments and apparatus
> for measuring or checking quantities of heat, sound, or light. Heading
> 9031, in pertinent part, 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 957966 (October 31, 1995).

Customs previously found that tunable laser diode sources were
classified under 9013.80.90, HTSUS. *See* HQ 962947 (March 12, 2001), HQ
962890 (March 5, 2001), HQ 962893 (March 5, 2001), HQ 956919 (December
12, 1994)(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
9013.80.90, HTSUS. *See* NY 873993 (May 27, 1992).

However, the article involved in the instant protest is a Lightwave
Multimeter mainframe unit imported with a tunable laser source module.
The protestant argues that, as such, the combined importation should be
classified in subheading 9027.50.40 as measuring instruments. In HQ
951863 (July 10, 1992), Customs found that an article which analyzed
light emitted by LEDs and laser diodes was classified in subheading
9027.50.40, HTSUS.

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). Here, we find that the article does
perform the task of "measuring" or "checking". The mainframe and tunable
laser source module are used to test devices such as multiplexers,
demultiplexers, optical switches, isolators, connectors and amplifiers,
fiber bragg gratings or thin film filters. *See* above description in
the FACTS section.

Although we note that the article is imported without the modules for
the four upper slots, pursuant to GRI 2(a), we find that the correct
classification of the Agilent Lightwave Mulitmeter mainframe when
imported with the tunable laser source module is classifiable as an
incomplete instrument or apparatus for measuring or checking quantities
of heat, sound or light; other instruments and apparatus using optical
radiations (ultraviolet, visible, infrared); electrical, in subheading
9027.50.40, HTSUS.

**HOLDING**:

The Lightwave Mulitmeter mainframe when imported with the tunable laser
source module is classifiable as instruments and apparatus for measuring
or checking quantities of heat, sound or light; other instruments and
apparatus using optical radiations (ultraviolet, visible, infrared);
electrical, in subheading 9027.50.40, HTSUS.

The protest should be **ALLOWED**. 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,

Myles B. Harmon, Acting Director

Commercial Rulings Division