HQ 952723: 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

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 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