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HQ 955230


July 12, 1994

CLA-2 CO:R:C:M 955230 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.:9031.80.00

Mr. Arne Midtskog
Midtskog & Associates
17221 N.E. 152nd Street
Woodinville, WA 98072

RE: Opticall Fiber Optic Talk Set; Telephone Test Set; Heading 9031; Additional U.S. Note 3 to Chapter 90; HQ 954057; HQ 954869, affirmed; DD 888654, revoked

Dear Mr. Midtskog:

This is in response to your letter dated October 12, 1993, requesting reconsideration of DD 888654, issued to you on August 13, 1993, by Customs in Buffalo, NY, involving the tariff classification of the Opticall Fiber-Optic Talk Set ("Opticall") under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993)(hereinafter, "section 625"), notice of the proposed revocation of DD 888654 was published on June 8, 1994, in the Customs Bulletin, Volume 28, Number 23. No comments were received. Our decision in this matter is set forth below.

FACTS:

The merchandise, labeled as the "Opticall", is a telephone test set used for testing disconnected ("dark" or "dead") fiber optic cables. It consists of a hand set and a portable base unit. Telephone "test sets" are designed for use in telephonic installation and repair, central office frame and switch train analysis, PABX and station equipment installation, and trouble isolation.

The Opticall provides an intercommunication facility between two distant sites by transmitting and decoding digital light signals sent along the fiber. Additionally, it provides two test features: a stabilized light source (constant level light output) for optical fiber-optic loss measurement at the remote end; and a special marker tone for fiber-optic identification at the distant end.

The merchandise is used by telecommunications technicians for communications and testing of fiber-optics. The stabilized light source of the Opticall is the equivalent of a constant level tone. If the light level is constant, it is possible to measure the light level (with a light level meter) at the source and then measure it again at the far end of the fiber. The difference is the optical loss of the fiber.

ISSUE:

Is the Opticall classifiable as other optical measuring and checking instruments, appliances, and machines under the HTSUS?

LAW AND ANALYSIS:

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.

In DD 888654, dated August 13, 1993, Customs in Buffalo, NY, determined that the Opticall was classifiable under subheading 9031.40.00, HTSUS, which provides for: "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . .: [o]ther optical instruments and appliances: [o]ther. . . ."

In HQ 954869, dated February 9, 1994, Customs Headquarters determined that the Opticall, which is used to check telephonic operations, was classifiable under subheading "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter. . .: [o]ther instruments, appliances and machines . . . ." Customs based this decision on prior rulings in which certain telephone hand test sets, which were designed to check the telephonic operation of copper wires, were determined to be classifiable under subheading 9031.80.00, HTSUS. See HQ 954057 (July 26, 1993); HQ 089928 (November 6, 1991); and HQ 089594 (September 26, 1991).

To classify merchandise as an "optical appliance" or "optical instrument", it must meet the requirements of Additional U.S. Note 3 to chapter 90, which states as follows:

[f]or the purposes of this chapter, the terms "optical appliances" and "optical instruments" refer only to those appliances and instruments which incorporate one or more optical elements, 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.

A tariff term that is not defined in the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes (EN) is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 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 HQ 088941, dated January 16, 1992, Customs, citing Webster's II New Riverside University Dictionary (1984), p. 1155, defined "subsidiary" as "[s]erving to supplement or assist . . . [s]econdary in importance: subordinate." Customs further stated that "[t]he meaning of 'subsidiary' has nothing to do with the amount of time optics are used in the overall use of a device, but it relates more to the type of task which the optics perform when being used in the operation of the device."

The Opticall is designed to be used to test fiber-optic wires and does not incorporate optics itself. The task being performed by the subject merchandise is on the optics. Therefore, the Opticall does not meet the definition of Additional U.S. Note 3 to chapter 90 as an "optical appliance" or an "optical instrument". We find that the classification of the Opticall in HQ 954869 was correct and that DD 888654 should be revoked.

HOLDING:

The Opticall Fiber Optic Talk Set is classifiable under subheading 9031.80.00, HTSUS, which provides for: "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . . : [o]ther instruments, appliances and machines. . . ." The general, column one rate of duty is 4.9 percent ad valorem.

In accordance with section 625, this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR

Sincerely,

John Durant, Director

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