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HQ 964534




November 21, 2001

CLA-2 RR:CR:GC 964534 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8544.41.80

Port Director
U.S. Customs Service
10 Causeway Street, Suite 603
Boston, MA 22220

RE: Protest 0401-00-100231; Other electric conductors; Cable assembly; Radar; Telecommunications.

Dear Port Director:

The following is our decision on Protest 0401-00-100231, filed by counsel on behalf of ITT Industries Inc. Cannon (“protestant”), against your classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain cable assemblies. The entries under protest were liquidated on June 23, 2000, and this protest was timely filed on August 14, 2000.

FACTS:

The file reflects the following: four entries of merchandise, generally described as cable assemblies with connectors, were liquidated on June 23, 2000. According to counsel’s memorandum in support of the protest (“protest memorandum”), the merchandise falls into two separate categories of cable assemblies with connectors, those designed and actually used in: 1) military field radios; and 2) in TECAS radar proximity systems for commercial airplanes. At issue are those cable assemblies with connectors for use in radar systems.

The protest memorandum, inter alia, provides a list of seven ITT part numbers for merchandise contained in each of the four entries. Five of the part numbers are identified as relating to goods described as “Tecas Collision Avoidance Radar Cable Assy[emblies]” (“radar cable assemblies”): 069-091-6859000, 069-091-6862000, 069-091-6867000, 069-091-6856000, and 069-091-6857000. The other two part numbers are identified as relating to military radio cable assemblies (069-316-6984009 and 069-316-6986009). No samples or descriptive materials of the goods were submitted.

ITT did submit 25 export invoices. Each invoice references an ITT part number and a general description of the merchandise covered. Only two of the export invoices provided show a part number identified by ITT as related to radar cable assemblies. Only one invoice relates to radio cable assemblies. On each of these three invoices, a single article is listed generally as a “cable assembly.” All of these cable assemblies were entered under subheading 8544.41.40, HTSUS, and were liquidated under subheading 8544.41.80, HTSUS.

ISSUE:

Are the cable assemblies with connectors for use in radar systems classifiable in subheading 8544.41.40, HTSUS, as “[o]ther electric conductors, for a voltage not exceeding 80 V: Fitted with connectors: Of a kind used for telecommunications[,]” or in subheading 8544.41.80, HTSUS, “. . . Other” ?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification of merchandise under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). Under GRI 1, HTSUS, goods are to be classified according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Legal Note 2 to Section XVI, HTSUS, provides in pertinent part, as follows:

Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546, or 8547) are to be classified according to the following rules:

(a) Parts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;

The HTSUS provisions under consideration are as follows:

8544 Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors:

Other electric conductors, for a voltage not exceeding 80 V:

Fitted with connectors:

Of a kind used for telecommunications . . . . Other

A copy of a Customs Form 29, dated June 6, 2000, provides that the cable assemblies are fitted with connectors and classifiable in subheading 8544.41.80, HTSUS, which provides for “Other electric conductors, for a voltage not exceeding 80 V: Fitted with connectors: Other.”

Protestant asserts that the goods at issue are cable assemblies with connectors for use in telecommunications. Protestant states that “telecommunications” includes not only the transfer of sound and written information, but data as well. In this regard, protestant cites HQ 554295, dated January 15, 1987, noting that, “Customs has previously stated that telecommunications equipment, both in a common and commercial sense, encompasses the transfer of sound, written information, video information, and data, as well as combinations thereof[,]” and “transmission equipment involves the forwarding of electromagnetic signals over wire or cable.” Insofar as “the TECAS system transfers data relative to the proximity of another flying object over a distance,” protestant concludes that the raw data being interpreted by the TECAS radar system is a telecommunications “transfer of data,” and classifiable under subheading 8544.41.40, HTSUS, which provides for, “[o]ther electric conductors, for a voltage not exceeding 80 V: Fitted with connectors: Of a kind used for telecommunications[.]”

EN 85.44 (3) provides,

“Telecommunication wires and cables (including submarine cables and data transmission wires and cables) are generally made up of a pair, a quad or a cable core, the whole usually covered with a sheath. A pair or a quad consists of two or four insulated wires, respectively (each wire is made up of a single copper conductor insulated with a coloured material of plastics having a thickness not exceeding 0.5 mm), twisted together. A cable core consists of a single pair or a quad or multiple stranded pairs or quads.”

However, absent samples or pictures of each cable with connectors and other relevant documentary evidence, Customs is unwilling to speculate as to whether or not the cable assemblies at issue meet the above descriptions. Although counsel states that the “specifications of every cable assembly are closely tailored to produce data that will be used by the system[,]” there is no documentary evidence available to support such a claim. From the documentation before us we are unable to determine how the merchandise is used or what function it actually performs.

19 CFR 174.13(a)(6) provides that a protest shall contain the nature of and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal. The scope of review in a protest filed under 19 U.S.C. 1514, is limited to the administrative record. Customs will consider all relevant allegations that are supported by competent evidence. In acting on a protest, however, Customs lacks the legal authority to assume facts and arguments that are not presented and therefore not in the official record.

Based upon the lack of documentary evidence submitted in support of the protestant’s claims, the merchandise, items # 069-091-6859000, 069-091-6862000, 069-091-6867000, 069-091-6856000, and 069-091-6857000, are classified under subheading 8544.41.80, HTSUS.

HOLDING:

Protestant’s claim that the subject cable assemblies for use in radar systems are classifiable in subheading 8544.41.40, HTSUS, “for use in telecommunications,” is not substantiated by documentary evidence. The cable assemblies with connectors for use in radar systems are therefore classifiable in subheading 8544.41.80, HTSUS, “. . . Other[.]”

The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom on Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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