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HQ 088492


April 4, 1991

CLA-2 CO:R:C:M 088492 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9024.80.00; 9031.40.00

District Director
U.S. Customs Service
511 N.W. Broadway Fed. Bldg.
Portland, OR 97209

RE: Protest and Request for Further Review 2904-0-000061, dated May 16, 1990; SPL3 Strain Measurement System; electronic fiber strain measurement system; measuring or checking instruments, appliances and machines; machines and appliances for testing the hardness, strength, compressibility, elasticity or other mechanical properties of materials

Dear Director:

The following is our decision regarding the Protest and Request for Further Review No. 2904-0-000061, dated May 16, 1990. At issue is the classification of the SPL3 Strain Measurement System manufactured by EG&G Fiber Optics of England and imported by Photon Kinetics of Beaverton, Oregon.

FACTS:

The article in question is the SPL3 Strain Measurement System ("SPL3"). Upon importation the SPL3 was classified under subheading 9031.40.00, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"), as "Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter...Other optical instruments and appliances..." This classification was based upon the brochure entered with the SPL3. However, apparently the importer submitted the incorrect brochure with the SPL3. The brochure submitted was for the CD3/2300 System, which is also imported by Photon Kinetics.

The CD3/2300 measures chromatic dispersion and other parameters of optical fibers. It is a more complex apparatus than the SPL3. The CD3/2300 includes two LEDs which are subject to electronic modulation at two superimposed electrical frequencies of 217Hz and 50 MHz. A phase change is introduced by the chromatic dispersion effect as signals are transmitted along
the fiber. The CD3/2300 measures the difference in electrical phase with two lock-in amplifiers tuned to the two frequencies referred to above. The measured phase difference is directly related to the chromatic dispersion parameter. The CD3/2300 can also measure the length of the fiber by recording the actual electronic phase at 50 MHz rather than the differential phase change between 217 Hz and 50 MHz signals. If the fiber is elongated, measurements of such length changes by the machine give an additional parameter of the fiber known as strain. This is measured by the internal electronics of the system.

The SPL3 is a simplified version of the CD3/2300. The SPL3 is designed for routine characterizations of fiber strain, length and transmitted optical power. The unit incorporates one or more light emitting diode ("LED") sources which provide measurements at either discrete or programmable wavelengths. Wavelength discrimination occurs by either highly stable interference filters or a solid state monochromator. With the insertion of the additional electronic modules a spectral attenuation option and a chromatic dispersion upgrade option are available.

Each system contains two units, one containing the optical section and the other containing signal processing electronics. All control and data processing of the SPL3 is through a software package accessed via the computer keyboard. The SPL3 is controlled by a Hewlett-Packard 300 series controller via the IEEE 488 interface bus. The optical section provides input and output connectors to the fiber under test. Three optical source options are available: (1) 1310nm transmission window; (2) 1310 and 1550nm transmission windows; and (3) programmable wavelengths in the 1300 and the 1550nm windows.

The SPL3 is used in both production environments and in research and development laboratories for studies of mechanical design aspects of single mode fibers and cabled fibers. Applications of the SPL3 include tensile testing, thermal cycling, strain monitor, stress corrosion studies, proof testing and design optimization, microbending and loss studies, delay measurements, fiber group index, photoelastic effects, and fiber strain as a function of cable strain.

The importer believes that the SPL3 is properly classified under subheading 9024.80.00, HTSUSA, as "Machines and appliances for testing the hardness, strength, compressibility, elasticity or other mechanical properties of materials (for example, metals, wood, textiles, paper, plastics), and parts and accessories thereof...Other machines and appliances..." We note that the CD3/2300 is currently being imported by Photon Kinetics under this classification.

ISSUE:

Whether the SPL3 is properly classified under heading 9024, HTSUSA, as "Machines and appliances for testing the hardness, strength, compressibility, elasticity or other mechanical properties of materials (for example, metals, wood, textiles, paper, plastics), and parts and accessories thereof..." or under heading 9031, HTSUSA, as "Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter..."

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). GRI 1, HTSUSA, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and..." The headings in contention are heading 9024 and 9031. These headings describe the following:

9024 Machines and appliances for testing the hardness, strength, compressibility, elasticity or other mechanical properties of materials (for example, metals, wood, textiles, paper, plastics), and parts and accessories thereof...

9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter...

It is the opinion of this office that heading 9024 describes the SPL3. Explanatory Note 90.24, Harmonized Commodity Description and Coding System ("HCDCS") states that heading 9024 "covers a wide range of machines and appliances for testing the hardness, elasticity, tensile strength, compressibility or mechanical properties of various materials..." HCDCS, Vol. 4, p. 1504. Although not dispositive, the Explanatory Notes are to be utilized to determine the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The SPL3 tests the tensile strength, compressibility and other mechanical properties of fibers, which are textile articles. The SPL3 meets the terms of heading 9024, in accordance with GRI 1. Since the SPL3 is "specified or included elsewhere in [chapter 90]", the SPL3 cannot be classified under heading 9031. The appropriate classification for the SPL3 is subheading 9024.80.00, as "Machines and appliances for testing
the hardness, strength, compressibility, elasticity or other mechanical properties of materials (for example, metals, wood, textiles, paper, plastics), and parts and accessories thereof...Other machines and appliances..."

As noted above, the importer is entering the CD3/2300, under subheading 9024.80.00. Although this instrument is not part of this application for further review, we deem it appropriate to comment on its classification at this time to avoid further confusion with the SPL3. The literature for the model shows that the CD3/2300 is capable of performing and primarily used for other functions than strain measurement. Since strain measurement does not appear to be the principle use of the CD3/2300, it is incorrectly classified under subheading 9024.80.00. The appropriate classification for the CD3/2300 is subheading 9031.40.00, as "Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter...Other optical instruments and appliances..." Should the importer disagree with this classification, we would accept a request for a review under 19 C.F.R. Part 174 or Part 177, as the case may be.

HOLDING:

The SPL3 tests the tensile strength, compressibility and other mechanical properties of fibers, which are textile articles. The SPL3 meets the terms of heading 9024, in accordance with GRI 1. The appropriate classification for the SPL3 is subheading 9024.80.00, as "Machines and appliances for testing the hardness, strength, compressibility, elasticity or other mechanical properties of materials (for example, metals, wood, textiles, paper, plastics), and parts and accessories thereof...Other machines and appliances..."

The protest should be allowed in full. A copy of this decision should be attached to the Form 19 Notice of Action for the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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