Reconsideration of NY 877465; Laser Pointers; Additional U.S. Note 3 to Chapter 90; Subheading 9013.20.00; EN 90.13; HQs 951714 and 952992

HQ 952723 January 15, 1993 CLA-2 CO:R:C:M 952723 EJD CATEGORY: Classification TARIFF NO: 9013.80.60 Ms. Ana M. Caballero Air/Ocean Import Department Midas Express, Inc. 120 South Linden Avenue South San Francisco, California 94080 RE: Reconsideration of NY 877465; Laser Pointers; Additional U.S. Note 3 to Chapter 90; Subheading 9013.20.00; EN 90.13; HQs 951714 and 952992 Dear Ms. Caballero: This is in response to your request, dated September 19, 1992, for reconsideration of New York Ruling Letter (NY) 877465, dated September 4, 1992, concerning, in particular, the classification of infiniter laser pointers ("laser pointers"), models QPON-670-NBK and QPON-670-BBK, under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination. FACTS: The laser pointer is about the size of an executive fountain pen, and its purpose is to direct a bright beam of red light at a projection screen or presentation surface in order to highlight a subject. It can be used, for example, on slides, videos, x-rays, overhead displays, in TV conferences, or exhibitions. The laser pointer can direct a beam of light up to 150 feet away and can be effectively used in daylight or on lighted screens. The infiniter laser pointer contains a solid state laser diode, and requires two 1.5-volts, AAA-size alkaline batteries, to operate. You maintain that the laser pointers are classifiable under subheading 9013.20.00, HTSUS, which provides for lasers, other than laser diodes, with a rate of duty of 3.9 percent ad valorem. ISSUE: What is the classification of the laser pointer under the HTSUS? LAW AND ANALYSIS: The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs), 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. Chapter 90, HTSUS, provides for optical instruments and apparatus. Additional U.S. Note 3 to Chapter 90, HTSUS, provides: For the purposes of this chapter, the terms "optical appliances" and "optical instruments" refer only to those appliances and instruments which incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose. The laser pointers meet the requirements of optical appliances and optical instruments under Additional U.S. Note 3 to Chapter 90, HTSUS. They contain one or more optical elements which are not solely for viewing a scale or for some other subsidiary purpose. The Explanatory Notes (ENs) are the official interpretation of the Harmonized Commodity Description and Coding System, and, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. EN 90.13 states, in pertinent part, at page 1479, that: 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. (Emphasis in the original.) In NY 877465, it was held that these laser pointers are classifiable under subheading 9013.80.60, HTSUS, which 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; parts and accessories thereof...[o]ther devices, appliances and instruments...[o]ther. (Emphasis added.) You assert that these laser pointers are classifiable under subheading 9013.20.00, HTSUS, which 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; parts and accessories thereof...[l]asers, other than laser diodes. In Headquarters Ruling Letter (HQ) 951714, dated August 6, 1992, Customs determined the proper classification of a targeting device, Laser Point Target Designator, was under subheading 9013.80.60, HTSUS, stating "[t]he reason for this classification is because this item is a laser pointing device incorporating a laser diode as the light source." Furthermore, we stated: The language used in subheading 9013.20, HTSUS, and the ENs to this subheading, clearly indicate that the intent was not to classify the type of merchandise under consideration as lasers in this subheading. Thus, inasmuch as the laser point target designator is clearly an optical instrument, the correct classification is under subheading 9013.80.60, HTSUS. See also HQ 952992, dated December 11, 1992. Based on the foregoing, we are of the opinion that the laser pointers are classifiable under subheading 9013.80.60, HTSUS. HOLDING: The laser pointers are properly classified under subheading 9013.80.60, HTSUS, which provides for other optical devices, appliances and instruments, with a rate of duty of 9 percent ad valorem. NY 877465 is affirmed. Sincerely, John Durant, Director