# HQ 965640

September 12, 2002

**CLA-2** RR:CR:GC 965640 KBR

**CATEGORY:** Classification

**TARIFF NO.:** 9027.90.54

Port Director

U.S. Customs Service

Building \# 77

JFK International Airport

Jamaica, NY 11430

**RE:** Protest 4701-02-100490; Tunable Laser Source Modules

Dear Port Director:

This is our decision on protest 4701-02-100490 filed by Agilent
Technologies, against your action regarding the classification, under
the Harmonized Tariff Schedule of the United States (HTSUS), of tunable
laser 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 tunable laser source modules, model #81680A,
81640A, 81642A and 81682A. These articles are intended to be used with
the Lightwave Measurement System, Models 8164A and 8164B.

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 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 of the Agilent Lightwave Multimeter.

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 Multimeter 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, fiber bragg gratings or thin film filters.

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. It has a
color display and a 3.5 inch floppy drive.

However, the only article at issue in this protest is the tunable laser
source module. 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 tunable
laser source 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, or
the parts provision thereof under subheading 9027.90.54, HTSUS.

**ISSUE:**

What is the proper classification under the HTSUS for the 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.

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.
>
> The article involved in this protest is a tunable laser source module
> intended to be incorporated into Agilent's Lightwave Multmeter
> mainframe unit. Customs found that the Lightwave Multimeter
> measurement system is classified in subheading 9027.90.50, HTSUS, as
> instruments and apparatus for measuring or checking quantities of
> heat, sound, or light. HQ 965639 (September 12, 2002). However, the
> instant protest involves only the tunable laser source module.

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 stand alone, bench-top tunable laser diode
sources were classified under subheading 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).

In the instant protest, however, the articles are only modules. They
must be inserted into the mainframe unit and cannot stand alone. The
instant tunable laser source module does not have a power source, a
central processing unit (CPU), controls, application software, or
displays. The design and connections of the instant article allow it to
be incorporated only into the Lightwave Multimeter mainframe unit.

Note 2(b) to chapter 90 states that:

> Other parts and accessories, if suitable for use solely or principally
> with a particular kind of machine, instrument or apparatus, or with a
> number of machines, instruments or apparatus of the same heading
> (including a machine, instrument or apparatus of heading 9010, 9013,
> or 9031) are to be classified with the machines, instruments or
> apparatus of that kind

Therefore, because the tunable laser source module cannot function
outside of the mainframe unit, we find that the tunable laser source
module is a part for use solely with the Lightwave Multimeter
measurement system. Therefore, pursuant to the discussion above and the
classification of the Lightwave Multimeter measurement system in HQ
965639, we find that the correct classification of the Agilent tunable
laser source module is as a part of an instrument or apparatus for
measuring or checking quantities of heat, sound or light; classifiable
in subheading 9027.90.54, HTSUS.

**HOLDING**:

The tunable laser source module is classifiable in subheading
9027.90.54, HTSUS, as a part of an instrument or apparatus for measuring
or checking quantities of heat, sound or light.

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