Slip Op. 09-117 

UNITED STATES COURT OF INTERNATIONAL TRADE 

____________________________________ 

: 

PHOTONETICS, INC., : 

: 

Plaintiff, : 

: Before: WALLACH, Judge 

v. : Court No.: 01-00916 

: 

UNITED STATES, : 

: 

Defendant. : 

 : 

[Plaintiff’s Motion for Summary Judgment is GRANTED; Defendant’s Cross-Motion for 

Summary Judgment is DENIED.] 

Dated: October 15, 2009 

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Curtis W. Knauss, Robert F. Seely

and Robert B. Silverman) for Plaintiff Photonetics, Inc. 

Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International 

Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice 

(Amy M. Rubin); and Chi S. Choy, Office of the Assistant Chief Counsel, U.S. Customs and 

Border Protection, Of Counsel, for Defendant United States. 

OPINION

Wallach, Judge: 

I 

INTRODUCTION 

This matter comes before the court on Plaintiff Photonetics, Inc.’s (“Plaintiff”) Motion 

for Summary Judgment and Defendant United States’ (“Defendant”) Cross-Motion for Summary 

Judgment. U.S. Customs and Border Protection (“Customs”) classified entries of Plaintiff’s 

precision tunable lasers under Heading 9013 of the Harmonized Tariff Schedule of the United 

States (“HTSUS”). Plaintiff challenges the classification and contends that the subject 

merchandise should instead be classified under HTSUS Heading 9027. Jurisdiction pursuant to 
2 

28 U.S.C. ' 1581(a) is uncontested by the parties. Because the subject merchandise should be 

classified under HTSUS Heading 9027, judgment is entered for Plaintiff.

II 

BACKGROUND 

The precision tunable lasers at issue and the relevant HTSUS provisions are described 

below. Customs in March 2001 classified the subject merchandise under Heading 9013 and 

Defendant now maintains that this classification is proper, albeit for different reasons than those 

initially relied upon by Customs. 

A 

The Subject Merchandise 

The subject merchandise is certain precision tunable lasers. Plaintiff’s Statement of 

Material Facts Not In Issue (“Plaintiff’s Facts”) ¶ 2; Defendant’s Response to Plaintiff’s 

Statement of Material Facts as to Which There Are No Genuine Issues to Be Tried (“Defendant’s 

Factual Response”) ¶ 2. They are complete instruments that produce infrared laser light and 

enable their operator to “tune” or set to produce laser light at a specific power level and 

wavelength. Plaintiff’s Facts ¶¶ 8, 10, 11; Defendant’s Factual Response ¶¶ 8, 10, 11. The laser 

light is split within the instrument into “control” and “test” beams. Plaintiff’s Facts ¶ 12; 

Defendant’s Factual Response ¶ 12. The control beam is used within the laser, measuring and 

adjusting the test beam as necessary to prevent variation from the pre-set level power or light 

intensity level. Plaintiff’s Facts ¶ 13; Defendant’s Factual Response ¶ 13. Data as to the specific 

wavelength and intensity of the laser light emitted is sent to, and recorded by, a computer. 

Plaintiff’s Facts ¶ 14; Defendant’s Factual Response ¶ 14. 

The test beam exits the precision tunable laser and is used to measure the quantity of light 
3 

absorbed by, or reflected from, a device under test (“DUT”) that is typically a fiber optic 

communications cable. Plaintiff’s Facts ¶ 15; Defendant’s Factual Response ¶ 15. The test 

beam’s intensity and wavelength is thereafter received by a light detector or light receiver. 

Plaintiff’s Facts ¶ 16; Defendant’s Factual Response ¶ 16. Data as to the specific wavelength 

and power level of the test beam after it passes through a DUT is sent to a computer. Plaintiff’s 

Facts ¶ 17; Defendant’s Factual Response ¶ 17. The computer calculates any difference in 

wavelength and power level between the light emitted by the laser and that received by the 

detector. Plaintiff’s Facts ¶ 18; Defendant’s Factual Response ¶ 18. 

B 

HTSUS Headings 9013 And 9027 

HTSUS Headings 9013 and 9027, and the relevant subheadings, provide 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: 

. . . . 

9013.20.00 Lasers, other than laser diodes 

. . . . 

9013.80 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 apparatus); 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 

. . . . 
4 

Heading 9013, HTSUS (2000); Heading 9027, HTSUS (2000). 

C 

The Classification By Customs And This Litigation 

Plaintiff’s subject merchandise, the precision tunable lasers at issue, was imported into 

the United States at various ports between 1998 and 2000.1

 Plaintiff’s Facts ¶ 2; Defendant’s 

Factual Response ¶ 2. Customs classified this merchandise having the “Tunics” brand name 

under HTSUS Heading 9013 and in March 2001 denied Plaintiff’s timely protest. Customs 

Headquarters Ruling No. 962947 (March 12, 2001) (“HQ 962947”). In its ruling, Customs 

considered classification under the following HTSUS provisions: 

• Heading 8541 for “light-emitting diodes” replicated in subheading 8541.40.20, HTSUS 

Heading 8541 (2000);2

• Heading 9013 for “lasers, other than laser diodes” replicated in subheading 9013.20.00, 

HTSUS Heading 9013 (2000); 

• Heading 9013 for “other appliances and instruments, not specified elsewhere in this 

chapter” covered by subheading 9013.80, HTSUS Heading 9013 (2000); and 

• Heading 9031 for “[m]easuring or checking instruments, appliances and machines, not 

 1

 Plaintiff Photonetics, Inc. (“Plaintiff”) and Defendant United States (“Defendant”) dispute the exact time 

period between 1998 and 2000 when the subject merchandise was imported. Plaintiff’s Statement of Material Facts 

Not In Issue (“Plaintiff’s Facts”) ¶ 2; Defendant’s Response to Plaintiff’s Statement of Material Facts as to Which 

There Are No Genuine Issues to Be Tried (“Defendant’s Factual Response”) ¶ 2. This disagreement is immaterial in 

considering Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment. See

Defendant’s Factual Response ¶ 2. 

2

 Plaintiff initially alleged in the alternative that the subject merchandise was properly classified under the 

Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 8541.40.20, Complaint ¶¶ 10-12, but has 

abandoned that claim. Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment and in 

Support of Cross-Motion for Summary Judgment (“Defendant’s Opposition and Cross-Motion”) Ex. A: Plaintiff’s 

Response to Defendant’s First Interrogatories and Requests for Production of Documents, Nos. 11, 21. 
5 

specified or included elsewhere in this chapter,” HTSUS Heading 9031 (2000).3

HQ 962947 at 2–3. 

Customs classified the subject merchandise under HTSUS subheading 9013.80.90. Id. at 

2, 8–9.4

 Customs found that 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.” Id. at 7. Customs declined to classify the precision tunable lasers at issue as 

instruments for measuring and checking under Heading 9031, concluding as follows: 

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, 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. 

HQ 962947 at 8. Plaintiff timely initiated this action contending that the subject merchandise is 

properly classified under Heading 9027 as a measuring and checking apparatus. Complaint ¶ 8. 

Plaintiff now moves for summary judgment in its favor that the precision tunable lasers at issue 

be classified under HTSUS subheading 9027.50.40. Id.; Memorandum of Law in Support of 

Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) at 2. 

During the course of this litigation, Customs reconsidered two aspects of HQ 962947. In 

contrast to its previous conclusion, Customs now agrees that the subject merchandise may be 

classified under HTSUS Heading 9027. Defendant’s Memorandum in Opposition to Plaintiff’s 

 3

 Plaintiff does not allege that classification is proper under Heading 9031. See Complaint ¶¶ 1–12; 

Defendant’s Factual Response ¶ 3; Defendant’s Opposition and Cross-Motion at 3 n.6, 13. 

4

 Defendant maintains that the majority of entries were classified under the Harmonized Tariff Schedule of 

the United States (“HTSUS”) subheading 9013.20.00 and only a few under subheading 9013.80.90. Defendant’s 

Factual Response ¶ 3; Defendant’s Opposition and Cross-Motion at 4 n.7. This issue is immaterial in considering 

Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment. See Defendant’s 

Factual Response ¶ 3. 
6 

Motion for Summary Judgment and in Support of Cross-Motion for Summary Judgment 

(“Defendant’s Opposition and Cross-Motion”) at 4. Customs has further “revised its 

interpretation of subheading 9013.20.00” by taking the position that the term “lasers, other than 

laser diodes” encompasses lasers that may contain laser diodes. Id. Defendant now moves for 

summary judgment in its favor that the subject merchandise be classified as “lasers, other than 

laser diodes” under HTSUS subheading 9013.20.00. Id.

III 

STANDARD OF REVIEW

Summary judgment is appropriate when there is “no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” USCIT R. 56(c); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 

(1986). On a motion for summary judgment, this court “may not resolve or try factual issues.” 

Phone-Mate, Inc. v. United States, 12 CIT 575, 577 (1988), aff’d, 867 F.2d 1404 (Fed. Cir. 1989) 

(citation omitted). Further, while a presumption of correctness attaches to Customs 

classifications pursuant to 28 U.S.C. ' 2639(a)(1), “this presumption ‘is irrelevant where there is 

no factual dispute between the parties.’” Bousa, Inc. v. United States, 25 CIT 386, 387 (2001) 

(quoting Rollerblade, Inc. v. United States, 112 F.3d 481, 484 (Fed Cir. 1997)). Here, both 

parties agree that there are no disputed issues of material fact. Plaintiff’s Motion at 10; 

Defendant’s Opposition and Cross-Motion at 8. The scope and meaning of the tariff terms at 

issue, which are purely questions of law, are therefore reviewed de novo. See Totes, Inc. v. 

United States, 69 F.3d 495, 497–98 (Fed. Cir. 1995); Rollerblade, 112 F.3d at 483. 

This court reviews classification cases de novo in accordance with 28 U.S.C. § 2640(a). 

Universal Elecs. Inc. v. United States, 112 F.3d 488, 491–93 (Fed. Cir. 1997). A classification 
7 

case presents a “question of law based on two underlying steps. The first step concerns the 

proper meaning of the tariff provisions at hand . . . . The second step concerns whether the 

subject imports properly fall within the scope of the possible headings.” Id. at 491 (citation 

omitted). The classification of merchandise entering the United States is governed by the 

HTSUS General Rules of Interpretation (“GRI”) that are applied in numerical order, as well as 

the HTSUS Additional U.S. Rules of Interpretation (“ARI”). JVC Co. of Am. v. United States, 

234 F.3d 1348, 1352 (Fed. Cir. 2000) (citing Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 

1379 (Fed. Cir. 1999)). The GRI 1 starting point provides in relevant part that, “for legal 

purposes, classification shall be determined according to the terms of the headings and any 

relative section or chapter notes.” GRI 1, HTSUS (2000). 

“Absent contrary legislative intent, HTSUS terms are construed according to their 

common and commercial meanings, which are presumed to be the same.” Simod Am. Corp. v. 

United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989) (citation omitted). “To assist it in 

ascertaining the common meaning of a tariff term, the court may rely on its own understanding 

of the terms used and may consult lexicographic and scientific authorities, dictionaries, and other 

reliable information sources.” Baxter Healthcare Corp. v. United States, 872 F.3d 1333, 1337 

(Fed. Cir. 1991) (citations omitted). The Explanatory Notes that accompany tariff provisions are 

not legally binding, H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988), reprinted in

1988 U.S.C.C.A.N. 1547, 1582, but do “clarify the scope of the HTSUS subheadings and offer 

guidance in their interpretation.” Franklin v. United States, 289 F.3d 753, 758 (Fed. Cir. 2002) 

(citation omitted). 

The underlying Customs determination in this case, HQ 962947, is not entitled to 
8 

deference pursuant to Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 

(1944). Under Skidmore, “an agency’s interpretation may merit some deference . . . given the 

‘specialized experience and broader investigations and information’ available to the agency.” 

United States v. Mead Corp., 533 U.S. 218, 234, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001) 

(quoting Skidmore, 323 U.S. at 139). The amount of respect afforded “will depend upon the 

thoroughness evident in its consideration, the validity of its reasoning, its consistency with 

earlier and later pronouncements, and all those factors which give it the power to persuade, if 

lacking power to control.” Skidmore, 323 U.S. at 140. Because here HQ 962947 was 

reconsidered, Defendant’s Opposition and Cross-Motion at 4, the ruling is neither persuasive nor 

afforded deference. Thus, the court “recognizes its independent responsibility to decide the legal 

issue regarding the proper meaning and scope of the HTSUS terms.” Franklin, 289 F.3d at 757 

(quoting Mead, 283 F.3d at 1346). See also Jarvis Clark Co. v. United States, 733 F.2d 873, 878 

(Fed. Cir. 1984). 

IV 

DISCUSSION 

The precision tunable lasers at issue are classifiable under both HTSUS Headings 9027 

and 9013. See HTSUS Heading 9027 (2000); HTSUS Heading 9013 (2000). Harmonized 

Commodity Description and Coding System Explanatory Note (“EN”) 90.13 provides guidance 

that the subject merchandise be classified under Heading 9027. Moreover, Heading 9027 

prevails over Heading 9013 using the GRI 3(a) analytical framework for comparing and 

classifying goods described by more than one HTSUS heading. See GRI 3(a), HTSUS (2000). 

The subject merchandise is therefore properly classified under Heading 9027 and specifically its 

most appropriate subheading, HTSUS subheading 9027.50.40. 
9 

A 

The Subject Merchandise Is Classifiable Under Both Heading 9027 And Heading 9013

The precision tunable lasers at issue are prima facie classifiable under HTSUS Headings 

9027 and 9013. See HTSUS Heading 9027 (2000); HTSUS Heading 9013 (2000). The former is 

a use provision while the latter is an eo nomine provision. As explained below, Defendant 

concedes that the subject merchandise is classifiable under Heading 9027 because it is part of a 

measuring system. Defendant’s Opposition and Cross-Motion at 3–4. However, the precision 

tunable lasers at issue do themselves measure or check light. See infra Section IV.A.1. Turning 

to Heading 9013, the subject merchandise qualifies as “lasers, other than laser diodes,” HTSUS 

Heading 9013 (2000), and is not excluded by Note 5 to Chapter 90 as argued by Plaintiff. See

Plaintiff’s Motion at 14–15. 

1 

The Subject Merchandise is Classifiable Under Heading 9027 

The precision tunable lasers at issue are classifiable under HTSUS Heading 9027. 

The first step of classification is to ascertain the proper meaning of the tariff provision at 

hand, Universal Elecs., 112 F.3d at 491, here Heading 9027: “instruments and apparatus 

for measuring or checking quantities of heat, sound or light (including exposure meters).” 

HTSUS Heading 9027 (2000). Defendant “agree[s] with Photonetics that the claimed 

tariff provision is a use provision.” Defendant’s Opposition and Cross-Motion at 17. A 

“‘use’ provision is designed to classify particular merchandise according to the ordinary 

use of such merchandise . . . and it describes articles in the manner in which they are used 

as opposed to by name.” Warner-Lambert Co. v. United States, 425 F.3d 1381, 1384–85 

(Fed. Cir. 2005) (internal quotations omitted). 
10 

The second classification step is to determine whether the imported articles are 

within the scope of a particular HTSUS heading. Universal Elecs., 112 F.3d at 491. 

Defendant concedes that the subject merchandise is classifiable under Heading 9027. 

Defendant’s Opposition and Cross-Motion at 14–15. The precision tunable lasers at issue 

are instruments. See Plaintiff’s Facts ¶ 8; Defendant’s Factual Response ¶ 8. They also 

qualify as apparatus. See Merriam-Webster Online Dictionary (2009) (defining 

“apparatus” as “equipment designed for a particular use.”). Furthermore, the precision 

tunable lasers are used to measure the absorption of light from a DUT. See Plaintiff’s 

Facts ¶ 15; Defendant’s Factual Response ¶ 15. This use can also be described as 

checking the absorption of light from a DUT. See United States v. Corning Glass Works, 

66 CCPA 25, 27, 586 F.2d 822 (1978) (“Check is defined as to inspect and ascertain the 

condition of . . .”) (internal quotations and citation omitted). 

The parties dispute the rationale for classification of the subject merchandise 

under Heading 9027. Plaintiff’s Motion at 15–19; Defendant’s Opposition and CrossMotion at 13–17. According to Defendant, “even though the Tunics models in issue are 

not capable of measuring or checking, because Photonetics has demonstrated to Customs’ 

satisfaction that they are solely used in measuring or checking systems, they are 

described by the terms of Heading 9027, HTSUS.” Defendant’s Opposition and CrossMotion at 14–15 (emphasis removed). Central to Defendant’s position is the undisputed 

fact that the precision tunable lasers at issue “are always used in conjunction with other 

items.” Defendant’s Opposition and Cross-Motion at 4; see id. Ex. A: Plaintiff’s 

Response to Defendant’s First Interrogatories and Request for Production of Documents, 
11 

Nos. 11, 26. Given the necessity of being used with a light detector and computer, 

Defendant concludes that the subject merchandise is classifiable under Heading 9027 

only because it “is used only as part of a system which tests materials (such as fiber optic 

cable) for light absorption.” Defendant’s Opposition and Cross-Motion at 7. Defendant 

relies upon precedent in which “[t]he terms ‘measuring or checking’ were found to be 

broad enough to include machines that do not, themselves, measure or check but were 

primarily used in measuring or checking applications.” Id. at 14 (citing Corning Glass, 66 

CCPA at 27–28). 

Plaintiff contends that the precision tunable lasers at issue are classifiable under Heading 

9027 because they themselves measure or check quantities of light. Plaintiff’s Motion at 15. 

ARI 1(a) provides in relevant part that “the controlling use is the principal use.” 5 ARI 1(a), 

HTSUS (2000); Plaintiff’s Motion at 15–16. Plaintiff’s position is that the subject merchandise 

principally measures and checks the quantity of light, Plaintiff’s Motion at 21, because each 

instrument was “designed and built to regulate precisely the power and wavelength of their 

infrared emission.” Plaintiff’s Motion Ex. 6: Affidavit of Nicephore Nicolas (“Nicolas 

Affidavit”) ¶ 6. As explained by Plaintiff’s expert, “in order to be useful, a precision tunable 

laser must control and maintain its power setting and wavelength setting of the light i[t] emits to 

the exacting degree required by the specific measurement or test application. A conventional 

 5

 Plaintiff argues based on Additional U.S. Rule of Interpretation 1(a) that Heading 9027 is appropriate 

because precision tunable lasers constitute the “class or kind of merchandise to which the subject merchandise 

belongs.” Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) at 

15–16. Courts use a seven factor framework to ascertain the “class or kind of merchandise.” United States v. 

Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373 (1976). Plaintiff contends that each factor supports the “class or 

kind” of precision tunable lasers being distinct for their use in measuring or checking quantities of light. Plaintiff’s 

Motion at 16–21. The need for this analysis is obviated by Defendant’s subsequent concession that the subject 

merchandise is classifiable under Heading 9027. See Defendant’s Opposition and Cross-Motion at 4. The court 

nevertheless notes that Plaintiff supports the factors with record evidence, Plaintiff’s Motion at 16–21, and 

Defendant does not object to the analysis. See Defendant’s Opposition and Cross-Motion at 12. 
12 

general purpose laser source would not be able to provide such control.” Id. Ex. 3: Affidavit of 

Joseph B. Milstein ¶ 23 (“Milstein Affidavit”). 

Plaintiff highlights two unique features of the subject merchandise. First, the “optical or 

light coupler, which splits the control beam from the main laser test beam” is “an extremely 

accurate component built into each laser.” Id. at 7. This enables precision tunable lasers to selfregulate by “maintain[ing] the pre-set emission power level precisely and continuously during 

operation of the instrument.” Nicolas Affidavit ¶ 6. The “light coupler is a necessary component 

of every tunable precision laser.” Plaintiff’s Motion at 8 (citing id. Ex. 5: Affidavit of Benjamin 

Lucas-Leclin (“Lucas-Leclin Affidavit”) ¶ 15). Second, Plaintiff explains that the subject 

merchandise is able to function in “single mode operation” that is “achieved by precisely 

adjusting the optical cavity length” of the external cavity component, constituting “a built-in 

design feature that ensures a high level of wavelength coherence in the laser light output, giving 

the beam ‘narrow spectral width.’ All precision tunable lasers have single mode operation.” 

Plaintiff’s Motion at 8 (quoting Lucas-Leclin Affidavit ¶ 16). Plaintiff’s expert explains that this 

ability to emit light at a single wavelength allows precision tunable lasers to “accomplish an 

accurate and precise measurement.” Milstein Affidavit ¶ 25. 

The subject merchandise is classifiable under Heading 9027 because it measures and 

checks light. See HTSUS Heading 9027 (2000). Despite always being used with a detector as a 

system, the precision tunable lasers at issue emit light for the purpose of measuring or checking.6

Plaintiff establishes that the effective measurement of the amount of light absorbed by a DUT is 

dependent on the light emitted from the laser operating “at the correct wavelength . . . and at the 

 6

 Because the precision tunable lasers themselves measure or check, Defendant misplaces reliance on 

United States v. Corning Glass Works, 66 CCPA 25, 586 F.2d 822 (1978) and Customs rulings that follow it. See

Defendant’s Opposition and Cross-Motion at 14, n.17. 
13 

correct power level.” Milstein Affidavit ¶ 19. The unique features of precision tunable lasers 

enable this function; the detector receives the reading from a DUT but does not undertake the 

measuring and checking on its own. As Plaintiff’s expert explains, “[w]ithout both the initial 

and final values of light, no measurement of any consequence can be performed.” Milstein 

Affidavit ¶ 18. “The differential, not the receiver/detector measurement alone is the actual 

measurement of interest.” Lucas-Leclin Affidavit ¶ 32. Therefore, Plaintiff accurately explains 

that “the subject merchandise does itself ‘measure or check’ every bit as much as the light 

detector with which it is principally used.” See Plaintiff’s Response to Defendant’s CrossMotion for Summary Judgment (“Plaintiff’s Response”) at 3 n.1. 

2 

The Subject Merchandise is Classifiable Under Heading 9013 

(a) 

The precision tunable lasers at issue are “lasers, other than laser diodes” 

The imported articles qualify under “lasers, other than laser diodes” in Heading 9013. 

Despite HQ 962947, Defendant now says that this is the relevant Heading 9013 as opposed to the 

“basket” or residual provision in Heading 9013 that is separated by a semicolon.7

 See HTSUS 

Heading 9013 (2000); Defendant’s Opposition and Cross-Motion at 4, n.7; EM Indus., Inc. v. 

United States, 22 CIT 156, 165, 999 F. Supp. 1473 (1998) (“Basket or residual provisions of 

HTSUS Headings . . . are intended as a broad catch-all to encompass the classification of articles 

for which there is no more specifically applicable subheading.”). The first classification step is 

 7

 Plaintiff advances argument based on the residual provisions of Heading 9013. Plaintiff’s Motion at 14; 

Plaintiff’s Response to Defendant’s Cross-Motion for Summary Judgment (“Plaintiff’s Response”) at 6–7. This 

need not be considered because Defendant only seeks classification under Heading 9013 for “lasers, other than laser 

diodes.” See Defendant’s Opposition and Cross-Motion at 4 n.7. The semicolons in HTSUS headings “create a wall 

around each grouping of items, preventing the qualifying language from one grouping from applying to another.” 

Commercial Aluminum Cookware Co. v. United States, 20 CIT 1007, 1016, 938 F. Supp. 875 (1996). 
14 

to ascertain the proper meaning of the tariff provision at hand, Universal Elecs., 112 F.3d at 491, 

here “lasers, other than laser diodes.” HTSUS Heading 9013 (2000). This is an eo nomine

provision that “describes the merchandise by name, not by use.” See Carl Zeiss, 195 F.3d at 

1379. “An eo nomine designation, with no terms of limitation, will ordinarily include all forms 

of the named article.” Id. (citation omitted). Defendant accurately observes that “the only 

limitation in the ‘laser’ portion of Heading 9013 is for laser diodes.” See Defendant’s Opposition 

at Cross-Motion at 9. 

Heading 9013 for “lasers, other than laser diodes” encompasses all forms of lasers other 

than separately imported laser diodes. These excluded articles are properly classified under 

Heading 8541 that describes: “Diodes, transistors and similar semiconductor devices; . . . ; lightemitting diodes; . . . .”8

 HTSUS Heading 8541 (2000). Defendant is correct that had “the drafters 

intended to exclude diode-based lasers from heading 9013, and not just the diodes themselves, 

the statutory language would have so stated. . . . By employing the phrase ‘other than laser 

diodes,’ the drafters clearly intended to exclude only separately imported laser diodes.” See

Defendant’s Reply to Plaintiff’s Response to Defendant’s Cross-Motion for Summary Judgment 

(“Defendant’s Reply”) at 6, 9 (emphasis removed). 

Turning to the second classification step, the precision tunable lasers at issue are within 

the scope of “lasers, other than laser diodes.” “Absent contrary legislative intent, HTSUS terms 

are to be construed according to their common and commercial meanings, which are presumed to 

be the same.” Carl Zeiss, 195 F.3d at 1379. The precision tunable lasers at issue are “lasers” as 

 8

 Plaintiff relies upon on precedent from this court classifying articles under the appropriate subheading of 

HTSUS Heading 8541. Plaintiff’s Response at 2, 14–16 (citing NEC Elecs., Inc. v. United States, 21 CIT 327 

(1997), aff’d 144 F.3d 788 (Fed. Cir. 1998)). However, NEC Elecs. involves only Heading 8541 and consequently 

does not aid in classifying the subject merchandise. 
15 

the word is commonly and commercially understood; indeed, Plaintiff admits that they are lasers. 

Defendant’s Statement of Additional Material Facts as to Which There Are No Genuine Issues to 

Be Tried (“Defendant’s Facts”) ¶ 1; Plaintiff’s Response to Defendant’s Statement of Material 

Facts as to Which There Are No Genuine Issues to Be Tried (“Plaintiff’s Factual Response”) ¶ 1. 

Further, Plaintiff’s expert testifies that they are “a class of lasers.” Plaintiff’s Motion at 20 (citing 

Ex. 2: Deposition of Joseph B. Milstein (“Milstein Depo.”) at 182). Courts may use “scientific 

authorities” to aid in the interpretation of HTSUS terms. Carl Zeiss, 195 F.3d at 1379 (citation 

omitted). Here, an authoritative source identifies external cavity tunable lasers as a type of laser. 

See Field Guide to Lasers, Rüdiger Paschotta (SPIE Press 2008) (“Field Guide to Lasers”) at 

100. 

The subject merchandise is not excluded from Heading 9013 because its lasing medium 

is a laser diode. The precision tunable lasers at issue consist of numerous other components, 

including the specifically designed external cavity and optical coupler. See supra Section IV.A.1; 

Milstein Affidavit ¶ 17; Defendant’s Facts ¶ 6; Plaintiff’s Factual Response ¶ 6.9 As Plaintiff’s 

expert testifies, the subject merchandise is “not simply a laser diode – it may contain a laser 

diode as an element, but it is far more than a laser diode.” Milstein Depo. at 175:22–176:1. Most 

important for classification purposes, the articles are not separately imported laser diodes 

classifiable under Heading 8541 that would be excluded by the language of Heading 9013. The 

precision tunable lasers are therefore classifiable as “lasers, other than laser diodes” under 

Heading 9013. 

 9

 Plaintiff quotes definitions in asserting that “[t]he terms ‘laser diode’ and ‘diode laser’ are often used 

interchangeably.” Plaintiff’s Response at 13, 14. However, Defendant is correct that this argument “is not relevant 

here” because diodes are only one component of the subject merchandise. See Defendant’s Reply to Plaintiff’s 

Response to Defendant’s Cross-Motion for Summary Judgment (“Defendant’s Reply”) at 9. 
16 

(b) 

The subject merchandise is not excluded by Note 5 to Chapter 90 

Plaintiff argues that the subject merchandise is excluded from classification under 

HTSUS Heading 9013 because Note 5 to Chapter 90 makes its function takes precedence over its 

being a laser. Plaintiff’s Motion at 14; Plaintiff’s Response at 4. Chapter Notes constitute 

binding law. GRI 1, HTSUS (2000). Note 5 to Chapter 90 provides as follows: “Measuring or 

checking optical instruments, appliance 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.” HTSUS Ch. 90, 

Note 5 (2000). Heading 9031 describes: “Measuring or checking instruments, appliances and 

machines, not specified or included elsewhere in this chapter; profile projectors; parts and 

accessories thereof.” HTSUS Heading 9031 (2000). 

Defendant counters that Note 5 “plays no part in the classification analysis of the 

merchandise in issue. The only provision competing with Heading 9013 that is mentioned in 

Note 5 is Heading 9031 . . . . In any case, Photonetics’ argument regarding Note 5 should be 

disregarded because the provisions relevant to this case are not the residual provision[s]”. 

Defendant’s Opposition and Cross-Motion at 19. Plaintiff responds that “Note 5 provides 

guidance for classification of all lasers principally used for measuring and checking functions. 

The logic of Note 5 is that the use or function of the laser is to take precedence in classification 

over the fact that it is a laser.” Plaintiff’s Response at 5 (emphasis removed). 

Note 5 to Chapter 90 references only Heading 9031 as preferential to Heading 9013. See

HTSUS Ch. 90, Note 5 (2000). Plaintiff’s argument to extend the application of a HTSUS Note 

from an expressly identified provision to an unstated provision is similar to that rejected in Bauer 

Nike Hockey USA, Inc. v. United States, 393 F.3d 1246, 1251 (Fed. Cir. 2004). There, Customs 
17 

and this court classified ice-hockey pants as “sports clothing” under Heading 6211. Id. at 1251. 

The Federal Circuit reversed and found the proper classification to be ice-hockey articles and 

equipment under Heading 9506. Id. at 1253. Both Customs and this Court used U.S. Note 12(a) 

associated with temporary subheading 9902.62.01 to preclude classification under Heading 9506, 

but the Federal Circuit rejected this position as follows: 

Neither the Court of International Trade nor Customs cites any authority to 

suggest that we may expand the use of U.S. Note 12(a) for purposes other than the 

one specified, i.e., “for purposes of subheading 9902.62.01.” . . . The HTSUS 

could easily contained a provision specifically classifying ice-hockey pants as 

clothing of Chapter 61 or 62 under the HTSUS upon expiration of the note if that 

was Congress’s intent. Absent such a provision or other indication of Congress’s 

intent in the legislative history, we are not persuaded that Congress intended a 

result contrary to the proper application of the headings and subheadings of 

Chapters 95 and 62. 

Id. at 1251. 

Bauer instructs that HTSUS Notes do not apply to unspecified HTSUS provisions 

absent indicia of congressional intent to do so. There is no indication of congressional 

intent for Note 5 to Chapter 90 to apply to Heading 9027. Furthermore, Note 5 to 

Chapter 90 by its terms denotes relevance only to the residual provision of Heading 9013 

for “[m]easuring or checking optical instruments, appliance or machines.”10 HTSUS Note 

5, Ch. 90 (2000). Defendant is therefore correct that Note 5 addresses “the situation in 

which a product is encompassed by two different basket provisions. . . . If the drafters 

had intended for Note 5 to encompass products falling within any of the terms of Heading 

9013 and every Heading encompassing measuring or checking instruments, appliances 

and machines, this intent would have been expressly incorporated into the legal note.” 

 10 This Note 5 to Chapter 90 language is very similar, although not identical, to the residual provision of 

HTSUS Heading 9013 that encompasses: “other optical appliances and instruments, not specified or included 

elsewhere in this chapter.” See HTSUS Heading 9013 (2000); HTSUS Ch. 90 Note 5 (2000). 
18 

Defendant’s Reply at 5, 6 (emphasis removed). The subject merchandise is therefore not 

excluded from, and is in fact classifiable under, the eo nomine Heading 9013 for “lasers, 

other than laser diodes.” 

B 

EN 90.13 Provides Guidance That Heading 9027 Is The Proper Classification

Plaintiff advances a series of arguments based on EN 90.13. “[A] court may refer to the 

Explanatory Notes of a tariff subheading, which do not constitute controlling legislative history, 

but nonetheless are intended to clarify the scope of HTSUS subheadings and offer guidance in 

interpreting subheadings.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 

1994) (citing Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed. Cir 1992)). As set forth 

below, EN 90.13 does not exclude all diode-based lasers from Heading 9013, but does support 

classification of the subject merchandise under Heading 9027. 

1 

EN 90.13

EN 90.13 is implicated by the instant classification.11 It provides as follows: 

In accordance with Chapter Note 5, measuring or checking optical appliances, 

instruments and machines are excluded from this heading and fall in heading 

90.31. Chapter Note 4, however, classifies certain refracting telescopes in this 

heading and not in heading 90.05. It should, moreover, be noted that optical 

instruments and appliances can fall not only in headings 90.01 to 90.12 but also 

in other headings of this Chapter (in particular, heading 90.15, 90.18 or 90.27). 

This heading includes: 

 11 Defendant argues that Harmonized Commodity Description and Coding System, Explanatory Note 

(“EN”) 90.13 is irrelevant here because it pertains only to the “other optical appliances and instruments, not 

specified or included elsewhere in this chapter” provision of Heading 9013. Defendant’s Reply at 5 (citing EN 

90.13(2) (2000) (“measuring or checking optical appliances, instruments and machines . . . .”)). However, EN 90.13 

does not contain language restricting its applicability to any particular Heading 9013; its inclusionary and 

exclusionary statements about Heading 9013 are prefaced only with reference to “[t]his heading” or “the heading.” 

See EN 90.13(2) (2000). Therefore, the classification of “lasers, other than laser diodes” implicates EN 90.13, as 

previously recognized by Customs. See Customs Headquarters Ruling No. 087513 (November 5, 1990); Customs 

Headquarters Ruling No. 953766 (January 19, 1994); Customs Ruling No. N022973 (February 27, 2008). 
19 

(1) Liquid crystal devices . . . . 

(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. 

Lasers 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[, for example, laser pointers].12

However, the heading excludes lasers which have been adapted to 

perform quite specific functions by adding ancillary equipment consisting of 

special devices (. . .) 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. Examples include: 

(i) Machine-tools for working any materials by removal of material 

by laser (e.g., metal, glass, ceramics or plastics) (heading 84.56). 

(ii) Laser soldering, brazing or welding machines and apparatus, 

 12 This bracketed language is in the 2007 version EN 90.13, not the 2000 version, and is the only deviation 

between versions in the quoted portion of EN 90.13. The bracketed language is relied upon by Plaintiff. Plaintiff’s 

Response at 12 n.6. Because this EN 90.13 revision was subsequent to the entries at issue, it is considered solely to 

demonstrate that the new language does not aid and in fact weighs against Plaintiff’s position. 
20 

whether or not capable of cutting (heading 85.15). 

(iii) Instruments for leveling (aligning) pipes by means of a laser beam 

(heading 90.15). 

(iv) Laser apparatus specially used for medical purposes (e.g., in 

ophthalmological operations) (heading 90.18). 

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). 

 . . . . 

EN 90.13 (2000) (2007) (emphasis in original). 

2 

EN 90.13 Does Not Exclude All Diode-based Lasers from Heading 9013

None of Plaintiff’s four arguments that EN 90.13 excludes all diode-based lasers 

from Heading 9013 are persuasive. According to Plaintiff, the listing of “crystals, gases, 

liquids, chemical products” — and not laser diodes — as possible lasing media “clearly 

indicates a laser which functions as a laser because it contains a diode in its laser head is 

not within the scope of that HTSUS heading.” Plaintiff’s Response at 11 (emphasis 

omitted). This position ignores the “e.g.” before the exemplars of lasing media in the 

parenthetical that allows for another type of lasing medium such as laser diodes. See EN 

90.13(2) (2000); Defendant’s Facts ¶ 6 (“articles in issue contain a laser diode”); 

Plaintiff’s Factual Response ¶ 6 (“the laser diode in the subject merchandise is the only 

lasing medium”). 

Plaintiff further argues that because laser diodes generate their own light, they are 

not “excited by the light from an electric source.” Plaintiff’s Response at 11 (citing EN 

90.13(2) (2000)). However, the EN alternatively provides for lasing medium excited by 
21 

light from “the reaction from another source of energy,” that includes laser diodes. See

EN 90.13(2) (2000); Defendant’s Facts ¶ 6; Plaintiff’s Factual Response ¶ 6. Plaintiff 

next contends that “the laser diode includes its own resonant optical cavity, making it a 

primary functional component of the ‘laser head’ described in the EN.” Plaintiff’s 

Response at 11. Defendant accurately replies that “nothing in the tariff terms or the EN 

refers to ‘functional components’ of a laser head and no language referring to ‘laser head’ 

indicates that its components determine classification. Indeed, in describing lasers, the 

EN recognizes that the lasing medium alone does not define a product as a laser of 

Heading 9013 as it expressly notes that the lasing medium is but one of ‘the basic 

elements combined in the laser head.’” See Defendant’s Reply at 7 (quoting EN 90.13(2) 

(2000)). 

Plaintiff acknowledges the defect in its final argument that EN 90.13 excludes all 

laser-based diodes from Heading 9013. Plaintiff argues that “[b]y omitting any reference 

to laser diodes in the discussion of lasing media and laser heads and by giving a function 

description that specifically excludes the method of operation of laser diodes, the EN 

clearly suggests that a diode-based laser source is not classifiable in heading 9013, 

HTSUS.” Plaintiff’s Response at 11–12. Plaintiff’s position is directly contradicted by 

the inclusion of “laser pointers” in EN 90.13 that Plaintiff recognizes “often consist of a 

laser diode.” See id. at 12 n.6 (citing EN 90.13(2) (2007)).13

The fundamental problem with Plaintiff’s interpretation of EN 90.13 is that it 

 13 Plaintiff attempts to distinguish diode-based laser pointers by stating that the subject merchandise “is a 

complex table-top machine housed in one or more metal cabinets.” Plaintiff’s Response at 12 n.6. However, 

Defendant is correct that “there is no EN or tariff statute language that supports this theory.” See Defendant’s Reply 

at 8 (emphasis removed). 
22 

defies the language of Heading 9013. Defendant correctly explains that “Photonetics is 

apparently asking the Court to [] read the tariff phrase ‘other than laser diodes’ in 

Heading 9013 as referring to any laser that employs a laser diode as the lasing medium. 

However, if the lasing medium were the dispositive characteristic for classification 

purposes, Heading 9013 would include the phrase ‘lasers, other than lasers employing 

laser diodes as the lasing medium.’” See Defendant’s Reply at 9. The phrase “lasers, 

other than laser diodes” encompasses all forms of lasers other than separately imported 

laser diodes. See supra Section IV.A.2(a). EN 90.13 supports this conclusion in its 

express exclusion of “laser diodes” classified under Heading 8541. EN 90.13(2) (2000). 

Therefore, even if Plaintiff’s flawed interpretation of EN 90.13 were accepted, the EN 

would be disregarded for impermissibly conflicting with an unambiguous tariff provision. 

See Airflow Tech., Inc. v. United States, 524 F.3d 1287, 1293 (Fed. Cir. 2008). 

3 

EN 90.13 Supports the Subject Merchandise Being Excluded from Heading 9013 Because 

of “Ancillary Equipment” That Identifies the Instruments as Measuring Apparatus

The subject merchandise is comprised of “lasers which have been adapted to 

perform quite specific functions by adding ancillary equipment consisting of special 

devices . . . and which, therefore, are identifiable as . . . measuring apparatus.” See EN 

90.13(2) (2000). EN 90.13 excludes these items from Heading 9013 and provides four 

exemplars that do not include precision tunable lasers. Id. Plaintiff accurately observes 

that these exemplars “are not exhaustive, and they all indicate that a laser designed for 

use in a specific commercial or scientific application to perform a specific function 

requiring laser light is excluded from heading 9013, based on their principal use for a 
23 

function described in another tariff heading of chapter 90, HTSUS.” See Plaintiff’s 

Response at 3. 

Defendant disputes that the precision tunable lasers at issue fall within the EN 

90.13 “ancillary equipment” exclusion. Defendant argues that the precision tunable 

lasers/ “Tunics only do what all lasers do - emit light” and emphasizes that they are 

imported separately from the detector and computer. Defendant’s Reply at 3–4; 

Defendant’s Factual Response ¶¶ 16, 17. This position ignores the fact that the subject 

merchandise itself is able to measure and check the absorption of light from a DUT by 

virtue of its optical coupler and specially-designed external cavity. See supra Section 

IV.A.1. These components are built-in “ancillary equipment” that identifies the precision 

tunable lasers at issue as measuring apparatus pursuant to EN 90.13. See EN 90.13(2) 

(2000). The “ancillary equipment” referenced in EN 90.13 need not be separate from, or 

external to, the imported article. See EN 90.13(2) (2000); Merriam-Webster Online 

Dictionary (2009) (defining “ancillary” as “subordinate, subsidiary, auxiliary, 

supplementary.”). Plaintiff is correct that the exclusion covers “components used to 

refine the output of the lasing medium as ‘ancillary’ to the lasing medium itself, which in 

this case is a laser diode.” See Plaintiff’s Response at 13. This diode is the lightgenerating element that makes the subject merchandise known as a laser. See Milstein 

Depo. at 113:9–11; Plaintiff’s Factual Response ¶ 6. 

Defendant interprets the EN 90.13 exclusion as hinging on “whether the laser is 

imported with special devices that adapt it to a specific function.” Defendant’s Reply at 3. 

According to Defendant, the subject merchandise’s function does not matter for exclusion 
24 

from Heading 9013 because “what matters is whether the laser is imported with ancillary 

equipment, and if the laser and ancillary equipment together perform a specific function.” 

Id. at 4 (emphasis removed).14 Defendant cites prior Customs rulings that classify lasers 

imported alone as “lasers, other than laser diodes” but under a different HTSUS heading 

when imported alongside separate equipment that is used in conjunction with those 

lasers. Id. at 3 (citing Customs Ruling No. N022973 (February 27, 2008) (“NO22973”); 

Customs Ruling No. NY G88942 (April 6, 2001) (“NY G88942”); Customs Headquarters 

Ruling No. 953766 (January 19, 1994) (“HQ 953766”); Customs Headquarters Ruling 

No. 087513 (November 5, 1990) (“HQ 087513”)). 

Defendant’s conclusion that the EN 90.13 exclusion precludes classification under 

Heading 9027 depends on the rejected theory that the subject merchandise only measures 

and checks as part of a system. See supra Section IV.A.1. Moreover, the previous rulings 

cited by Defendant do not involve measuring or checking devices; they classify lasers 

when imported alongside separate equipment as either “[m]achine tools for working any 

material by removal of material, by laser . . .” under HTSUS Heading 8456, HQ 087513, 

HQ 953766, NY G88942, or “[e]lectro-medical instruments” under HTSUS subheading 

9018.90, HQ 953766. By contrast, Plaintiff relies on a Customs ruling in which articles 

similar to the subject merchandise imported alone were classified under Heading 9027. 

Plaintiff’s Motion at 22–23 (citing Customs Headquarters Ruling No. 965906 (December 

20, 2002) (“HQ 965906”)). Those articles also had a laser diode, external cavity and 

 14 Defendant attempts to support this position with EN language that: “Lasers 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.” Defendant’s Reply at 4 (quoting EN 90.13(2) (2000)). However, this general statement about 

Heading 9013 does not restrict application of the “ancillary equipment” exclusion. See EN 90.13(2) (2000). 
25 

optical coupler. See HQ 965906 at 2; Plaintiff’s Motion at 22. 

HQ 965906 undermines Defendant’s position that the EN 90.13 exclusion applies 

only to lasers imported with separate equipment. See HQ 965906. That ruling classified 

“a compact tunable laser source module” that “does not stand alone but must be inserted 

into a slot in the mainframe.” Id. at 2. Together they comprised a system “capable of 

measuring basic fiber-optic parameters” that “measures quantities of light by use of 

optical radiation.” Id. Although the laser was not imported alongside the mainframe that 

it was “built specifically to work with,” id. at 2, Customs classified it under Heading 

9027 “as part of an instrument or apparatus for measuring or checking quantities of heat, 

sound or light.” Id. at 5. HQ 965906 quotes the EN 90.13 exclusion, id. at 4, but does not 

classify the articles under Heading 9013 as would be expected using the interpretation 

that Defendant now advances.15 Therefore, HQ 965906 supports EN 90.13 providing 

guidance that the subject merchandise should likewise be classified under Heading 9027 

despite being classifiable as “lasers, other than laser diodes” under Heading 9013. See

HQ 965906. 

C 

Heading 9027 Prevails Over Heading 9013 In The GRI 3(a) Analysis

Classification of the subject merchandise is not resolved by GRI 1 because the precision 

tunable lasers at issue are classifiable under both HTSUS Headings 9027 and 9013. Although 

EN 90.13 supports classification under Heading 9027, GRI 1 is here not conclusive. With GRI 2 

 15 Defendant claims that Customs Headquarters Ruling No. 965906 (December 20, 2002) (“HQ 965906”) is 

irrelevant because it was based on the now reconsidered position that “lasers, other than laser diodes” excludes all 

diode-based lasers. Defendant’s Opposition and Cross-Motion at 15 n.19. Although Customs may have classified 

those modules under subheading 9013.20.00 using its present interpretation, see id., HQ 965906 undermines 

Defendant’s EN 90.13 interpretation. The court is not here giving deference to HQ 965906 but rather finding it 

supports Plaintiff’s position that EN 90.13 excludes precision tunable lasers imported alone from Heading 9013. 
26 

inapplicable,16 the court turns to GRI 3(a) which provides an analytical framework for 

classifying merchandise described by more than one HTSUS heading. Heading 9013 for “lasers, 

other than laser diodes” encompasses a broad range of articles. See HTSUS Heading 9013 

(2000); infra Section IV.C. 2. In a comparison with instruments that only measure and check 

light, as Plaintiff advocates and Federal Circuit precedent supports, Heading 9027 clearly 

prevails. Even if the complete Heading 9027 that also includes instruments that measure heat 

and sound is used for comparison, as Defendant advocates, the headings equally describe the 

subject merchandise and trigger the rule that a use provision prevails over an eo nomine

provision. GRI 3 therefore compels classification of the precision tunable lasers at issue under 

Heading 9027.17

1

The Rule of Relative Specificity 

GRI 3(a) is known as the “rule of relative specificity.” Orlando Food Corp. v. United 

States, 140 F.3d 1437, 1441 (Fed. Cir. 1998). It provides in relevant part that “[w]hen . . . goods 

are, prima facie, classifiable under two or more headings, classification shall be effected as 

follows: The heading which provides the most specific description shall be preferred to headings 

providing a more general description.” GRI 3(a), HTSUS (2000). Where articles can be 

 16 HTSUS General Rule of Interpretation (“GRI”) 2 is not implicated because the classification here does 

not involve articles that are either “incomplete,” “unfinished,” unassembled” or “dissembled,” GRI 2(a), HTSUS 

(2000), or “mixtures or combinations” of materials or substances, GRI 2(b), HTSUS (2000). 

17 Plaintiff appears to make, and Defendant replies to, an argument based on GRI 3(b). See Plaintiff’s 

Response at 12, 13 (discussing “essential element” and “essential character”); Defendant’s Reply at 8–9. However, 

this rule is not implicated here because the subject articles are not “[m]ixtures, composite goods . . . , and goods put 

up in sets for retail sale. . . .” See GRI 3(b), HTSUS (2000). GRI 3(c) by contrast could provide a basis to find that 

the precision tunable lasers at issue are classifiable under Heading 9027 as opposed to Heading 9013 if GRI 3(a) 

were not dispositive. See GRI 3(c), HTSUS (2000) (“When goods cannot be classified by reference to 3(a) or 3(b), 

they shall be classified under the heading which occurs last in numerical order among those which equally merit 

consideration.”). 
27 

classified under two HTSUS headings, under GRI 3(a) the classification “turns on which of these 

two provisions are more specific.” Orlando Food, 140 F.3d at 1441. Courts undertaking the GRI 

3(a) comparison “look to the provision with requirements that are more difficult to satisfy and 

that describe the article with the greatest degree of accuracy and certainty.” Faus Group, Inc. v. 

United States, No. 2008-1605, 2009 WL 3066633 (Fed. Cir. September 25, 2009), at * 4 

(quoting Orlando Food, 140 F.3d at 1441). 

2

“Lasers, Other Than Laser Diodes” Encompasses a Broad Range of Articles 

For purposes of comparison under GRI 3(a), “lasers, other than laser diodes” is a broad 

provision covering all forms of lasers other than separately imported laser diodes that are 

classified under Heading 8541. See supra Sections IV.A.2(a), IV.B.2. Defendant argues that the 

term “laser” is “narrowly defined in general dictionaries.” Defendant’s Opposition and CrossMotion at 17, 18 (citing Encarta® World English Dictionary (defining “laser” as “device 

emitting focused beam of light”)). Defendant emphasizes Plaintiff’s description of a laser as “an 

optical-electronic device that emits a narrow beam of highly focused optical radiation in the 

visible, infrared, or ultraviolet spectrum.” Id. at 18 (citing Plaintiff’s Motion at 5). This meaning 

stems from “laser” as an acronym for “Light Amplification by Stimulated Emission of 

Radiation.” See Milstein Affidavit ¶ 8; Defendant’s Opposition and Cross-Motion at 10 n.11. 

The simple understanding of “laser” does not curtail the vast spectrum of qualifying 

devices. Plaintiff is correct that “[t]he term ‘lasers’ covers a broad range of instruments with 

very different characteristics and uses.” Plaintiff’s Response at 8 (citing Field Guide to Lasers). 

As explained by Plaintiff’s expert, “various types of lasers are often identified by the nature of 

their lasing medium: gas, solid, liquid, or semiconductor diode. . . . The many types of lasers 
28 

have a wide variety of uses, including CD and DVD reading and writing, barcode reading, 

welding and cutting, medical applications (e.g., hair and tattoo removal, eye surgery, laser 

scalpels), and digital communication.” Milstein Affidavit ¶¶ 10, 11. The scientific authority 

relied upon by Plaintiff details many types of lasers, including: 

• Semiconductor lasers (Field Guide to Lasers at 33); 

• Vertical-cavity surface-emitting lasers (id. at 40); 

• Fiber-coupled diode lasers (id. at 42–43); 

• Quantum cascade lasers (id. at 45); 

• Solid-state bulk lasers (id. at 46); 

• Rod lasers (id. at 59); 

• Slab lasers (id. at 60–61); 

• Thin-disk lasers (id. at 62); 

• Monolithic lasers and microchip lasers (id. at 63); 

• Cryogenic lasers (id. at 65); 

• Waveguide lasers (id. at 69); 

• Upconversion fiber lasers (id. at 77); 

• Dye lasers (id. at 79); 

• Gas lasers (id. at 81); 

• Helium-neon lasers (id. at 82); 

• Argon-ion lasers (id. at 83); 

• Carbon-dioxide lasers (id. at 85); 

• Excimer lasers (id. at 87); 

• Raman lasers (id. at 89); and 

• Free-electron lasers (id. at 90). 

As this list demonstrates, many different types of lasers are classifiable under HTSUS 

subheading 9013.20.00. 

3 

Heading 9027 Prevails Over Heading 9013 Using Either Construction of Heading 9027 

(a) 

The appropriate Heading 9027 terms of comparison need not be resolved 

The parties dispute the relevant Heading 9027 language for use in the relative specificity 

comparison. Defendant advocates the complete phrase “instruments and apparatus for measuring 
29 

and checking quantities of heat, sound or light (including exposure meters).” Defendant’s 

Opposition and Cross-Motion at 18. Plaintiff advocates the insertion of ellipses such that 

Heading 9027 becomes “instruments and apparatus for measuring or checking quantities of . . . 

light (including exposure meters).” Plaintiff’s Response at 6. Defendant replies that the court 

should not “create[] a narrow comparison ‘grouping’ by ignoring some of the descriptive terms 

between semi-colons, as Photonetics suggests should be done here.” See Defendant’s Reply at 

13. 

Neither party has identified precedent analyzing whether HTSUS terms that do not 

pertain to the subject articles are eliminated for GRI 3(a) purposes. The Federal Circuit appears 

to support the subtraction of irrelevant words in the comparison that Plaintiff favors. Carl Zeiss

found that the merchandise was more specifically described as “[c]ompound optical 

microscopes” under HTSUS Heading 9011 than by “instruments and appliances used in medical 

or surgical sciences” under Heading 9018, not the entire Heading 9018 that also covers dental or 

veterinary sciences. Carl Zeiss, 195 F.3d at 1380, 1377. Orlando Food found that the product 

was more specifically described by “preparations for sauces” under HTSUS subheading 

2103.60.90, not the entire subheading covering “[s]auces and preparations therefor: Other,” than 

by HTSUS subheading 2002.90.00 that encompasses: “Tomatoes prepared or preserved: Other.” 

Orlando Food, 140 F.3d at 1441. In both of these cases, the GRI 3(a) analysis considered an 

HTSUS provision that was narrowed to eliminate words not relevant to the articles being 

classified. 
30 

Carl Zeiss and Orlando Food thereby provide support for Plaintiff’s position.18 However, 

the Circuit’s analyses do not specifically articulate that HTSUS headings should be narrowed for 

GRI 3(a) purposes; the cases may instead be using shorthand to reference the entire heading. 

This court does not need to resolve this issue here because Heading 9027 prevails in the 

comparison even if the entire Heading 9027 is considered. See infra Section IV.C.3(c). 

(b) 

The subject merchandise is more specifically described as an 

instrument for measuring light than as a laser 

Heading 9027 clearly prevails over Heading 9013 in a GRI 3(a) analysis of the subject 

merchandise if lasers are compared with instruments for measuring light only. The truncated 

Heading 9027 for “instruments and apparatus for measuring or checking quantities of . . . light” 

includes significantly more than the subject merchandise. See Defendant’s Opposition and 

Cross-Motion at 18 (listing “exposure meters, spectrometers, [] spectrophotometers . . . fiber 

optic scopes, footcandle meters, light probes, and radiometers.”). However, many more articles 

are encompassed by the wide range of “lasers, other than laser diodes.” See supra Section 

IV.C.2. As shortened to eliminate instruments that measure sound and heat, Heading 9027 is 

here “more difficult to satisfy” than Heading 9013. See Orlando Foods, 140 F.3d at 1441. 

Because this construction of Heading 9027 “encompasses a narrower range of items and uses, it 

is the more specific of the two headings.” See Faus, 2009 WL 3066633 at *5. 

The precision tunable lasers at issue are described with a “greate[r] degree of accuracy 

 18 Plaintiff’s position is further supported by Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 

(Fed. Cir. 2004). After concluding that the relevant HTSUS headings did not resolve the GRI 3(a) analysis, the 

Federal Circuit there proceeded to compare the relevant subheadings. Id. at 1252. Instead of using the complete 

subheading 9506.99.25 (“[i]ce-hockey and field hockey articles and equipment, except balls and skates, and parts 

and accessories thereof”), Bauer inserted ellipses to conclude as follows: “It is clear that ‘ice hockey . . . articles and 

equipment,’ as provided under subheading 9506.99.25, gives a much more specific description of Bauer’s hockey 

pants than subheading 6211.33.00, which refers quite broadly to other garments of man-made fibers.” Id. at 1252–

53. 
31 

and certainty” as instruments that measure or check light than as lasers. See Orlando Foods, 140 

F.3d at 1441 These are not ordinary lasers but rather specifically designed to and in fact measure 

the absorption of light from a DUT. See supra Section IV.A.1. Plaintiff establishes that they are 

sold primarily for this purpose within a specialized market. See Lucas-Leclin Affidavit ¶¶ 27, 28, 

33; Nicolas Affidavit ¶¶ 7, 8; Milstein Affidavit ¶¶ 28, 29, 37. Plaintiff further establishes that 

only a discrete subset of lasers function as instruments that measure or check light. See LucasLeclin Affidavit ¶ 11. Therefore, Heading 9027 prevails over Heading 9013 in the GRI 3(a) 

classification analysis if the relative specificity terms of comparison are “lasers, other than 

diodes” and “instruments and apparatus for measuring or checking quantities of . . . light 

(including exposure meters).”19

(c) 

Because the entire Heading 9027 and “lasers, other than laser diodes” equally describe the 

subject merchandise, Heading 9027 prevails as a use provision 

If the entire Heading 9027 is considered, Heading 9027 and Heading 9013 are here in 

equipoise. By including instruments that measure or check heat and light, Heading 9027 

necessarily encompasses a much greater number of articles. See Defendant’s Opposition and 

Cross-Motion at 18 (listing “a wide variety of sound level meters, . . . cryoscopes, Ebullioscopes, 

 19 Defendant claims support for its position that Heading 9013 prevails in a GRI 3(a) analysis from 

EN GRI 3(a) IV (2000). Defendant’s Reply at 10–11. EN IV to GRI 3(a) provides as follows: 

It is not practicable to lay down hard and fast rules by which to determine whether one heading 

more specifically describes the goods than another, but in general terms it may be said that: 

(a) A description by name is more specific than a description by class . . . . 

(b) If the goods answer to a description which more clearly identifies them, that description is 

more specific than one where identification is less complete. 

EN GRI 3(a) IV (2000). Although EN GRI 3(a) IV(a) may support classification under Heading 9013 because 

lasers are a “description by name,” the precision tunable lasers at issue are “more clearly identifie[d]” as measuring 

and checking instruments under Heading 9027 in accordance with EN GRI 3(a) IV(b). Given this conflicting 

guidance and the highly qualified introductory language, EN GRI 3(a) IV does not aid in the classification of the 

subject merchandise. 
32 

and thermographic cameras.”). The range of these instruments is equivalent to the wide 

spectrum of laser types covered by Heading 9013. See supra Section IV.C.2. Heading 9027 for 

instruments that measure heat, sound or light has comparable breadth to Heading 9013 for lasers 

because they encompass an analogously large number of articles beyond the subject 

merchandise, such that neither here is “more difficult to satisfy.” See Orlando Food, 140 F.3d at 

1441.20 These two provisions are “equally descriptive” of the subject merchandise. See Len-Ron 

Mfg. Co., Inc. v. United States, 334 F.3d 1304, 1313 (Fed. Cir. 2003) (quotation omitted). For 

purposes of the instant classification, Headings 9027 and Heading 9013 are “in balance.” See id.

(quotation omitted). 

When the GRI 3(a) comparison results in competing HTSUS provisions being equal, 

courts employ a canon of interpretation. The Federal Circuit explains: 

the general rule of customs jurisprudence that, in the absence of legislative intent 

to the contrary, a product described by both a use provision and an eo nomine

provision is generally more specifically provided for under the use provision. 

Resort to this aid of statutory construction is not obligatory, however it is merely 

a convenient rule of thumb for resolving issues where the competing provisions 

are otherwise in balance. 

Orlando Food, 140 F.3d at 1441 (citations and internal quotations omitted) (emphasis 

removed). This rule does not apply if the competing eo nomine provision is “obviously 

more specific than the ‘use’ provision.” United States v. Simon Saw & Steel Co., 51 

CCPA 33, 40–42 (1964) (articles much more specifically described by the eo nomine

provision for “circular saws” than by the use provision for “cutting tools of any kind.”). 

 20 Neither the Heading 9027 for instruments that measure heat, sound or light nor the Heading 9013 for 

“lasers, other than laser diodes” describe the precision tunable lasers at issue with a “greate[r] degree of accuracy 

and certainty.” See Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998). The court notes that 

this GRI 3(a) inquiry becomes disjointed with the inclusion of irrelevant HTSUS words, thereby supporting 

Plaintiff’s position that HTSUS headings may be narrowed in the relative specificity analysis. 
33 

For example, the microscopes in Carl Zeiss were clearly described with greater 

specificity by the eo nomine Heading 9011 for “[c]ompound optical microscopes” than 

by the use Heading 9018 for instruments used in science. Carl Zeiss, 195 F.3d at 1381. 

The canon of HTSUS interpretation that use provisions trump eo nomine

provisions supports classification of the subject merchandise under Heading 9027. Cases 

that decline to apply the rule are readily distinguishable because here the Heading 9013 

eo nomine provision for “lasers, other than laser diodes” is not “obviously more specific” 

than the Heading 9027 use provision for instruments that measures heat, sound and light. 

See Simon Saw, 51 CCPA at 40. Rather, the provisions are equally descriptive of the 

subject merchandise and Defendant does not provide any legislative intent to preclude 

applicability of the canon. Therefore, even with the expanded language, Heading 9027 

prevails over Heading 9013 under GRI 3(a) in the instant classification. 

D 

The Subject Merchandise Is Properly Classified Under HTSUS Subheading 9027.50.40

With EN 90.13 guiding and GRI 3(a) resolving that the precision tunable lasers at 

issue are classified under Heading 9027, the court must next decide the appropriate 

HTSUS subheading. See JVC, 234 F.3d at 1352 (“Only after determining that a product 

is classifiable under a particular heading should the court look to the subheadings to find 

the proper classification”) (citation omitted). Plaintiff seeks classification under 

subheading 9027.50.40 and Defendant does not argue for a different subheading under 

Heading 9027. The precision tunable lasers at issue are best classified under the residual 

subheading 9027.50 because they are “other instruments and apparatus using optical 

radiations (ultraviolet, visible, infrared),” see HTSUS subheading 9027.50 (2000), and 
34 

“there is no more specifically applicable subheading.” See EM Indus., 22 CIT at 165. 

The subject merchandise is further described as “[e]lectrical” under subheading 

9027.50.40 because of the “electronic microprocessor” that enables its operation. See

Plaintiff’s Motion at 4–5 (citing Milstein Affidavit ¶ 32). Therefore, the precision 

tunable lasers at issue are properly classified under HTSUS subheading 9027.50.40. 

V 

CONCLUSION 

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is Granted and 

Defendant’s Cross-Motion for Summary Judgment is Denied. The liquidation of the subject 

merchandise is remanded to Customs for action consistent with this Opinion. 

 __/s/ Evan J. Wallach____ 

Evan J. Wallach, Judge 

Dated: October 15, 2009 

 New York, New York 
ERRATA

Photonetics, Inc. v. United States, Court No. 01-00916, Slip Op. 09-117, dated October 15, 2009 

Page 7, lines 16–17, delete the citation “Baxter Healthcare Corp. v. United States, 872 F.3d 

1333, 1337 (Fed. Cir. 1991) (citations omitted).” and substitute the citation “Baxter Healthcare 

Corp. v. United States, 182 F.3d 1333, 1337–38 (Fed. Cir. 1999) (citation omitted).” 

January 5, 2010