Precious Tritium

One thing I have learned as a customs lawyer who does a lot of classification work is that there are millions of odd items moving in international trade the existence of which I am completely ignorant. Such is the case of the gaseous tritium light sources used in, among other things, firearm sights. These things use tritium sealed in a glass that has been coated in phosphor. The radioactive tritium decays, releasing beta particles, which interact with the phosphor causing it to emit light. In other words, it creates light with no external power source. Pretty cool. 

Tritium is, of course, a real thing. It is an isotope of hydrogen. We know this from the excellent documentary "Spider-Man."


This comes up in relation to the Court of International Trade decision in Trijicon, Inc. v. United States in which the importer challenged the tariff classification of several versions of the gaseous tritium light sources ("GTLS"). The plaintiff uses them to make gun sights. The question presented was whether the GTLS are classifiable in Heading 9022 as apparatus based on the use of beta radiation as the plaintiff contended. Customs classified the GTLS as lamps and lighting fittings in Heading 9405.

The Explanatory Notes give some guidance on what constitutes an "apparatus" of Chapter 90 by stating that they are usually, but not always, "characterised by their high finish and high precision." Moreover, they are used mainly in medical and scientific applications and have an aperture designed to allow the radiation to escape in one direction. 

Heading 9405 includes specialized lamps using any light source. Important for this discussion, 9405 is limited to lamps and light fittings not elsewhere specified or included. That means that if the GTLS are classifiable as apparatus of 9022, they cannot be classified in 9405. 

The first issue the Court took up was whether a GTLS is an "apparatus" for purposes of classification in 9022. As usually happens, the parties proffered multiple and conflicting definition of "apparatus." The main two are "a set of materials or equipment for a particular use" and "a complex machine or device." 

On the first, the plaintiff argued that the GTLS is made up of "materials" that serve a particular purpose. This approach makes sense in that the definition of apparatus requires "materials or equipment." The use of "or" indicating that those are two distinct categories. The Court disagreed and read "materials" as things that also serve a particular function, presumably contributing to the function of the whole apparatus. The GTLS consists of a glass capillary, phosphor coating, and tritium gas. According to the Court, none of those materials serves a particular function in isolation. They only provide illumination when combined. 

I understand this analysis, but on this point I respectfully dissent. The tritium serves an independent function of emitting beta radiation; the phosphor coating serves the independent function of absorbing beta particles and emitting photons. While not mechanical or electrical, the combination of these elements strikes me as a set of materials put together for a particular use. This give meaning to "materials" that is distinct from "equipment." The GTLS is a device composed of a set of several materials and that set performs a useful task. 

The Court next considered an alternative definition of apparatus as a "complex device." It is a light source, which does not seem particularly complex compared to the items listed eo nomine in 9022. Even smoke detectors, which are listed at 9022.29.40, have a number of active elements including a source of ionizing radiation, a battery, and a speaker to sound the alarm. The materials that make up the GTLS are static and only interact in a passive, natural process. The Court focused on the individual components rather than the imported whole, but the whole is not particularly complex.

The Court next focused on the fact that the GTLS are not beta particle emitters. There is no aperture allowing the particles to exit the tube. This is taken from the EN, which describes the apparatus of 9022 as having the "radioactive substance [] placed in a container, normally of steel coated with lead (bomb), which has an aperture designed to let the radiations pass in one direction only." The GTLS are not designed to release beta particles in one direction. They do release light, but that is not the type of radiation contemplated in 9022.

The Court, therefore, found that the GTLS are not classifiable as apparatus based on the use of beta radiation. 

Moving on, the remaining question was whether they are "lamps." The Court noted several reference documents including plaintiff's own documents in which the GTLS are described as lamps. And, there is no limitation in the Explanatory Notes as to the constituent materials of lamps. Lamps is a broad term for things that provide illumination. The mere fact that the products work because of the presence of beta radiation does not exclude them from 9045. 

Because they are not apparatus of 9022 and are lamps of 9045, the CIT granted the government's motion for summary judgment. 

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