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Trade Court Says Tritium-Powered Gun Sights Are 'Lamps' Not 'Apparatus'

Importer Trijicon's tritium-powered gun sights are "lamps" and not "apparatus," slotting them under Harmonized Tariff Schedule subheading 9405, the Court of International Trade ruled on Feb. 16. Judge Mark Barnett said the gun sights do not meet definition of "apparatus" put forward by either Trijicon or the government, who respectively defined the term as a set of materials or equipment and a complex device. The court instead found that the products "are readily classified as lamps," which are defined as "any of various devices for producing light."

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The products at issue are 11 models of the gun sights, all of which are either cylindrical or rectangular and used in iron sights and rifle scopes, respectively. Each model contains a gaseous tritium light source that includes a hermetically sealed gas capsule coated internally with zinc sulfide and filled with tritium gas, a radioactive hydrogen isotope that emits a beta radiation particle as it decays. No beta radiation is emitted outside of the product.

The beta particle "excites" the interior zinc sulfide coating, causing it to emit a "self-luminous glow." The product is not lead-lined nor does it have an aperture through which the beta radiation can pass.

Trijicon claimed its products are "apparatus" as described in HTS heading 9022, though the importer and the U.S. disagreed on the definition of the term. Trijicon said an apparatus is a set of materials meant for some purpose or use, while the government said the U.S. Court of Appeals for the Federal Circuit described the term in Gerson v. U.S. as a "complex device or machine for a specific use."

Barnett found any difference between these two definitions to be "inconsequential" since the imports "do not meet either definition."

The judge first addressed whether the imports can be regarded as a "set of materials," after first clarifying that the goods clearly "serve a particular or specific function," with that function being "illumination." Barnett ruled the imports are "not a set of materials for purposes of HTSUS 9022." The court said "it appears incongruous to read 'materials' to include anything of matter, rather than referring to equipment or tools or instruments."

The judge clarified that equipment refers to a "set of articles or physical resources serving to equip" something, and while it is also known as an "apparatus," each individual part of Trijicon's gun sights "must also serve a particular function." While the gun sights each have at least three parts -- a glass capillary, phosphor coating and tritium gas -- none of them "constitutes equipment because no part, alone, serves a particular function." Only in combination with the other parts does any one part serve the function of illumination.

Barnett next addressed the definition of "apparatus" as meaning a "complex device," finding that it "fares no better for Trijicon." The term "complex" is defined as consisting of "parts or elements not simply co-ordinated, but some of them involved in various degrees of subordination" that also aren't analyzed or disentangled easily, the court noted.

The judge said he can "readily discern" the gun sights' separate elements, though as was the case for Trijicon's definition of apparatus, the parts "must work together to create illumination." The court said each part of the product "remains distinct and able to be disentangled from the others, and no element is subordinate to the others." All three must be coordinated to work, and despite the "scientific nature of this manner of producing illumination," it is still a "natural phenomenon created by the coordination of different component parts."

Barnett clarified that he isn't saying that an illuminating item "can never be complex," given the Federal Circuit's holding in Gerson, which said that LED candles didn't serve a particular function since they were both decorative and illuminative.

Heading 9022 specifically covers apparatus in which a radioactive substance is placed in a container with an "aperture designed to let the radiation pass in one direction only." While it's "undisputed that the subject imports do not" have an aperture via which beta radiation can pass, Trijicon argued that the goods have an aperture that allows for light radiation to pass in one direction. Barnett held that the Explanatory Note "addresses alpha, beta, and gamma radiation -- not light radiation.” As a result, the goods don't ultimately use the beta radiation in the manner referenced by the Explanatory Notes, the opinion said.

After concluding that the products aren't apparatus, Barnett said it is clear from the definition of lamp and the goods at issue that the gun sights are lamps. As an eo nomine provision, heading 9405 covers all versions of the goods included in the heading which, here, are lamps. Since the items produce illumination, and the Explanatory Note says that lamps can be made of any material and use any light source, "a lamp can readily include one that involves beta radiation," the opinion said.

The court also noted that Trijicon refers to its items as lamps in various internal documents and in communications with government agencies. And while Trijicon argued that lamps are only meant to illuminate a space or room, Barnett said that lamps are not limited to this function, given that the heading includes "searchlights and spotlights," which are for guidance or warning.

(Trijicon v. United States, Slip Op. 24-18, CIT # 22-00040, dated 02/16/24; Judge: Mark Barnett; Attorneys: Alexander Chinoy of Covington & Burling for plaintiff Trijicon; Luke Mathers for defendant U.S. government)