HQ 953516: Protest No. 2605-92-100015; Laser Pointers; Laser Diode; other optical appliances and instruments; EN 90.13; 9013.20.00

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 953516

                          July 1, 1993

CLA-2 CO:R:C:M 953516  RFA

CATEGORY: Classification

TARIFF NO.: 9013.80.60


District Director of Customs
International and Terrace Streets
Nogales, AZ  85621

RE:  Protest No. 2605-92-100015; Laser Pointers; Laser Diode;
     other optical appliances and instruments; EN 90.13;
     9013.20.00


Dear District Director:

     The following is our decision regarding the request for
further review of Protest No. 2605-92-100015, which concerns the
classification of laser pointers under the Harmonized Tariff
Schedule of the United States (HTSUS).  The entries of the
subject merchandise were liquidated on June 5, 1992.  The protest
was timely filed on September 3, 1992. 

FACTS:

     The subject merchandise is a battery-operated laser pointer
shaped like a fountain pen which functions as a pointer by
directing a narrow beam of red light at a chart or similar item. 
The laser pointer contains a laser diode (a semiconductor laser)
and optics to direct the beam of light. 

     The merchandise was entered under subheading 9013.20.00,
HTSUS, as lasers, other than laser diodes.  The entry was
liquidated under subheading 9013.80.60, HTSUS, as other optical
appliances and instruments.  

     Heading 9013 provides for: 

          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. . . 


     The subheadings under consideration are as follows:

     9013.20.00:    Lasers, other than laser diodes. . .

          Goods classifiable under this provision have a general,
          column one rate of duty of 3.9 percent ad valorem.

     9013.80.60     Other devices, appliances, and instruments:
                    [o]ther. . .

          Goods classifiable under this provision have a general,
          column one rate of duty of 9.0 percent ad valorem.

ISSUE:

     Whether the laser pointers are classifiable as lasers or as
other optical appliances and instruments under the HTSUS?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.

     The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS.  While not
legally binding, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the
proper interpretation of these headings.  Counsel cites the
following from EN 90.13(2), page 1478:

     Lasers. These produce or amplify electro-magnetic
     radiation in the wavelength range between 1 nanometre
     and 1 millimetre (ultraviolet, 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.

     Counsel then argues that this is a broad definition which
covers all types of lasing media, and includes optical products
which encompass any type of laser device.  Therefore, the pointer
which contains a laser diode, should be classified as a laser,
even though it is optical. 
     However, the EN continues, on page 1479, as follows:

          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. (emphasis added) 

     It is clear to us that only laser devices specifically
described in EN 90.13(2) are included within subheading
9013.20.00, HTSUS, and that a simple pointing device containing a
laser diode is not within the class of articles described in the
EN.

     Counsel also states that the Australian Customs Service has
issued advice on laser pointers, classifying them as lasers. 
Treasury Decision (T.D.) 89-80, "Guidance For Interpretation of
Harmonized System" (54 FR 35127) states that Customs is not bound
to abide by another country's rulings and that they are merely
instructive of how other countries may classify like goods.  We
find that this advice is not instructive because the language
"lasers, not being any of the goods listed in Table A other than
those specifically mentioned in Table B", cited by counsel in
support of his claim, does not appear in the United States
tariff.

HOLDING:

     For the foregoing reasons, the laser pointers are
classifiable under subheading 9013.80.60, HTSUS, as other optical
appliances and instruments.
 
     You should deny the protest in full.  A copy of this
decision should be attached to Customs Form 19 and provided to
the protestant as part of the notice of action on the protest.

                              Sincerely,



                              John Durant, Director