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HQ 953826

December 14, 1993

CLA-2 CO:R:C:M 953826 RFA


TARIFF NO.: 9013.80.60

Ms. Sandra Liss Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Himawari Sunlight Collection and Transmission System; Other Optical Appliances and Instruments; Lamp and Lighting Fittings; Non-Electrical Lamp; U.S. Additional Note 3 to Chapter 90; Section XVI, Legal Note 1(m); Heading 9013; ENs 94.05, 90.31; HQs 088628, 952000; HQ 952744, affirmed

Dear Ms. Friedman:

This is in response to your letter dated April 5, 1993, requesting reconsideration of HQ 952744, dated January 5, 1993, in which we classified the Himawari Sunlight Collection and Transmission System under the Harmonized Tariff Schedule of the United States (HTSUS).


The merchandise, labeled as the Himawari Sunlight Collection and Transmission System ("Himawari System"), consists of an acrylic dome, a sun collector (a series of Fresnel lenses arranged in a honeycomb pattern and mounted in a housing), a sun sensor, a light receiving component, a rotation motor, and a control unit. The fiber optic cables attached to the Himawari System are cut to specific lengths to run through the building into which it is to be installed.

The Himawari System is designed to transmit sunlight from the outside to indoor locations. When sunlight passes through the Fresnel lens, chromatic aberration occurs, causing different wavelengths of sunlight--ultraviolet, visible, and infrared (heat)--to be at different distances from the lens. The fiber optic cables are placed at the focus point of the visible light rays, allowing only the visible light rays to enter into the optic fiber. As a result of this placement of the cables, most of the ultraviolet radiation and infrared radiation are eliminated. The fiber optic cables then transmit the visible light to a fixture which is a reflector, not a bulb or similar item, located inside a structure.

The Himawari System, which works only in daylight, has an internal clock mechanism used to calculate the position of the sun; the rotation motor moves the Himawari's lenses in the direction of the sun throughout the course of the day. After sunset, the Himawari System shuts off and re-positions itself for the next morning sunrise.

In HQ 952744, we held that the Himawari System was classifiable as other optical appliances or instruments under subheading 9013.80.60, HTSUS. You believe that the proper classification is as a non-electrical lamp or light fitting under subheading 9405.50.40, HTSUS, or in the alternative, as other machines and mechanical appliances not specifically provided for elsewhere under subheading 8479.89.90, HTSUS.


Is the Himawari System classifiable as other optical appliances or devices or as a non-electrical lamp or lighting fitting under the HTSUS?


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.

You state that the Himawari System is more specifically provided for as lamps and lighting fittings because the subject merchandise meets the criteria set forth in the Harmonized Commodity Description and Coding System Explanatory Notes (EN) 94.05. The ENs 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. EN 94.05, page 1581, states "[l]amps and lighting fittings of this group can be constituted of any material. . .and use any source of light". The question to be resolved is whether the Himawari System constitutes a lamp and lighting fitting.

In Rico Import Co. v. United States, Slip Op. 92-146, dated August 27, 1992, the court stated that "[i]t is well settled that tariff acts must be construed to carry out the intent of the legislature." See Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380, 382 (1982)(citing Sandoz Chem. Works, Inc. v. United States, 43 CCPA 152, 156, C.A.D. 623 (1956)). The first place to look to establish the intent of Congress is the language of the statute itself. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The court may resolve ambiguities in the plain language of a statute by resorting to legislative history and other extrinsic sources. Sandoz Chem. Works, 43 CCPA at 156.

A tariff term that is not defined in the HTSUS or in the EN's is construed in accordance with its common and commercial meaning. Nippon Kogasku (USA), 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

In Morris Friedman & Co. v. United States, 73 Cust.Ct. 112, 115, C.D. 4561 (1974), aff'd, 63 CCPA 5, C.A.D. 1156, 524 F.2d 745 (1975), the Customs Court consulted various dictionaries to determine that the common meaning of the term "lamp" is "any contrivance which affords a means of producing light". We checked other sources and have found similar definitions. In volume 9 of the McGraw-Hill Encyclopedia of Science & Technology, 6th Ed., page 553, lamp is defined as:

A generic term for any artificial source of light. The term lamp is applied to the entire range of sources, including flame sources. . ., incandescent sources, and electric arc discharge sources. Used with a modifier, such as ultraviolet, infrared, or sun, the term lamp is used to indicate sources that radiate energy in the ultraviolet or infrared portions of the electromagnetic spectrum (plus some radiation in the visible part of the spectrum).

You also cited to Webster's Third New International Dictionary, page 1267, for the definition of lamp as: "a light-giving device; . . . any of various other devices that produce artificial light".

The Himawari System collects sunlight from outside a structure and transmits the energy of visible sunlight through optic cables to a reflector (the lighting element). The Himawari System is merely a transmitter of sunlight or energy to a reflector which is the lighting element or lamp which produces and provides the illumination for a room. Based upon these definitions, we find that the reflectors for the Himawari System which are not imported, meet the definition of the term "lamp". The Himawari System itself is not the lamp because it does not produce light but merely transmits existing sunlight to the reflectors.

Citing numerous court cases under the Tariff Schedule of the United States (TSUS, the predecessor of the HTSUS), you indicate that the merchandise cannot be classified as other optical instruments and appliances under heading 9013, HTSUS, because the Himawari System does not aid or enhance human vision. In defining optical instruments, EN 9031.40, page 1533, states:

[t]his subheading covers not only instruments and appliances which provide a direct aid or enhancement to human vision, but also other instruments and apparatus which function through the use of optical elements or processes.

In HQ 952000, dated January 28, 1993, Customs stated that the "restrictive interpretation limiting the terms 'optical instruments' or 'optical appliances' to instruments which aid human vision is based on outdated notions. Because of advancements in technology in the field of optics, many apparatus operate through the use of optical elements." Thus, the fact that the Himawari System does not provide a direct aid or enhancement to human vision does not take it beyond the scope of heading 9013, HTSUS.

Additional U.S. Note 3 to chapter 90 provides as follows: "For the purposes of this chapter, the term 'optical appliances' and 'optical instruments' refer only to those appliances and instruments which incorporate one or more optical elements [e.g., lens], 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." In HQ 088628, dated August 20, 1991, Customs defined the term "subsidiary" as "[s]erving to supplement or assist . . . [s]econdary in importance: subordinate." See Webster's II New Riverside University Dictionary, 1155 (1984).

The Himawari System incorporates one or more optical elements, the Fresnel lenses and the fiber optic cables. These optical elements are not subsidiary. Without the Fresnel lenses and the fiber optic cables, the Himawari System could not collect and transmit sunlight into a building structure. The optical elements of the Himawari System are essential to transmitting sunlight. Therefore, we find that the Himawari System is an optical appliance and instrument. The Himawari System is classifiable under subheading 9013.80.60, HTSUS, as other optical appliances and instruments. You suggest classification under heading 8479, HTSUS, as a machine not elsewhere specified. Section XVI, Legal Note 1(m) states as follows: "[t]his section does not cover: [a]rticles of chapter 90. Because the Himawari System is provided for under chapter 90, classification under chapter 84 is precluded by operation of Section XVI, Legal Note


The Himawari System is classifiable under subheading 9013.80.60, HTSUS, which provides for optical appliances and instruments. The general, column one rate of duty is 9.0 percent ad valorem.


HQ 952744, dated January 5, 1993, is affirmed.


John Durant, Director
Commercial Rulings Division

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