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HQ 952366


April 5, 1993

CLA-2 CO:R:C:M 952366 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8517.30.50

District Director
U.S. Customs Service
909 First Ave., Rm 2039
Seattle, WA 98174

RE: Protest No. 3001-92-100520; Lynx Automation; Faxlink International, Ltd.; ExtraLine; Fax Detector; Opto Coupler; HQ 089039; Telegraphic Switching Apparatus; Telephone; Switch

Dear District Director:

This is our response to Protest Number 3001-92-100520, dated June 30, 1992, and Application for Further Review, regarding the classifications of a "Fax Detector," an "Opto Coupler," and an "ExtraLine," under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The "Fax Detector" is an intermediary switching device that is situated between a telephone line wall jack and a telephone, a facsimile (fax), and/or an answering machine. It is designed to enable the user to share one telephone line with a telephone, an answering machine, and a fax machine (telegraphic). The "Fax Detector" monitors incoming calls and automatically switches facsimile transmissions to the fax machine. Thus, it eliminates the need for a dedicated phone line for a fax machine.

The "ExtraLine" is a similar switching device that is installed in the same manner as the "Fax Detector." It enables the user to share one telephone line between a telephone, a fax machine (telegraphic) and an answering machine or a computer modem. The "ExtraLine" monitors incoming calls automatically (24 hours a day), with or without an answering machine.

No descriptive information was submitted regarding the "Opto Coupler." The protestant merely states that the proper classification is under subheading 8541.40.80, HTSUS, which provides for "[d]iodes, transistors and similar semiconductor devices...: [p]hotosensitive semiconductor devices...," rather than as assessed under subheading 8517.90.15, HTSUS, which provides for
parts of telephonic apparatus.

ISSUE:

What are the classifications of a "Fax Detector," an "Opto Coupler," and an "ExtraLine," under the Harmonized Tariff Schedule of the United States (HTSUS)?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

The Fax Detector and the ExtraLine were classified at the port of Seattle, Washington, under subheading 8517.81.00, HTSUS, which provides for: "[e]lectrical apparatus for line telephony or telegraphy, including apparatus for carrier-current line systems: [o]ther apparatus: [t]elephonic."

Whereas, the importer claims that the Fax Detector and the ExtraLine are classifiable under subheading 8517.30.50, HTSUS, which provides for: "[e]lectrical apparatus for line telephony or telegraphy, including apparatus for carrier-current line systems: [t]elephonic or telegraphic switching apparatus: [o]ther."

The importer asserts that these devices "merely listen in on the line after the phone is answered by an individual or with an answering machine, for a CNG tone data signal" and thus "has no effect on voice communications." The importer also states that "[a]lthough both machines have plug-in features for either an optional telephone or answering machine, these convenience features are clearly subordinate and are not necessary for the performance of the primary use and purpose of these devices." We agree that the Fax Detector and the ExtraLine were designed to sense a facsimile transmission (telegraphic transmission) and then to switch that signal to the facsimile machine.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to the HTSUS, page 1362, regarding telegraphic apparatus, in pertinent part state:

(II) TELEGRAPHIC APPARATUS

This is essentially designed for converting texts or images into appropriate electrical impulses, for transmitting those impulses, and at the receiving end, receiving these impulses and converting them either into conventional symbols
or indications representing the text, or into the text image itself.

Although this EN was not necessarily specifically written for the instant types of telegraphic switching apparatus, we are of the opinion that the facsimile transmission itself is telegraphic since text or images are converted into electrical impulses and then converted back to the text or image at the receiving end. As the court has stated, "[i]t must also be remembered that the tariff statutes were enacted 'not only for the present but also for the future, thereby embracing articles produced by technologies which may not have been employed or known to commerce at the time of the enactment * * *.'" NEC America, Inc. v. United States, 8 CIT 184, 186 (1984), citing Corporacion Sublistatica, S.A. v. United States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669 (1957). See HQ 089039, dated June 20, 1991, for a similar holding regarding similar merchandise.

Section 174.13(a)(5) & (6), Customs Regulations (19 CFR 174.13(a)(5) & (6), provide that protests shall contain the following information:

(5) A specific description of the merchandise affected by the decision as to which the protest is made;

(6) The nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal;

No descriptive information or justification for the objection was set forth regarding the "Opto Coupler," other than the vague, overly broad, and unsubstantiated statement of "misclassification." Therefore, we cannot sustain the claimed classification regarding the "Opto Coupler."

HOLDING:

The Lynx Automation "Fax Detector" and the "ExtraLine" are classifiable under subheading 8517.30.50, HTSUS, which provides for: "[e]lectrical apparatus for line telephony or telegraphy, including apparatus for carrier-current line systems: [t]elephonic or telegraphic switching apparatus: [o]ther." The rate of duty is 4.7% ad valorem.

No descriptive information or justification for the objection was set forth regarding the "Opto Coupler." Therefore, we cannot sustain the claimed classification regarding the "Opto Coupler."

You should deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. A copy of this
decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,


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