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HQ 965287





July 30, 2002

CLA-2 RR:CR:GC 965287 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.90

Port Director of Customs
605 West 4th Avenue, Room 205
Anchorage, AK 99501

RE: Protest 3195-01-100048; Band pass separator device; Model WD 312551000

Dear Port Director:

The following is our decision regarding Protest 3195-01-100048, filed against your classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a band pass separator device, by brokers on behalf of Excelight Communications Inc., FOTI Management, a service division of Foxcom Optical Technology Incorporated (“Excelight”). Customs liquidated the subject entries on February 16, and March 2, 2001, and the protest was filed on April 6, 2001.

FACTS:

Protestant describes the merchandise, model number WD 312551000, as “fiber optical cable, which is made up of individually sheathed fibers.” A specification sheet submitted by Excelight refers to the article as a “band pass separator device” (“BPSD”). The BPSD specification sheet, however, also refers to the merchandise as a “WDM,” or wavelength division multiplexer, as does an invoice that accompanied the Customs .” Protestant’s letter of February 13, 2001 states that the merchandise is one of the components for a Dense Wavelength-Division (DWDM) system.

Protestant’s sample is stamped with the following notation: “P/N:P-WD-312551000 S/N:0321170 FOTI.” It has a stainless steel cylinder approximately 34 cm long, and 5.5 cm in diameter, with 1.3 cm of plastic sheathing material of undetermined thickness extending from each end of the cylinder. A single optical fiber enters one end of the cylinder. This single fiber appears to be spliced into, or permanently joined with, another individual optical fiber, as two individual
optical fibers exit the opposite end of the cylinder. The individual optical fiber strands are approximately 48 inches in length.

The specification sheet provides that the BPSD is useable for “Add/Drop Systems,” “Fiber Amplifier Systems,” “DWDM Systems,” “3-Port WDM Systems” and “CATV Fiber-Optic Systems.” The sample container has a hand-written notation “3-Port WDM.” No other information was provided concerning the manufacturing process or internal design of the merchandise.

The optical fiber strands are not described other than as “optical fiber cable.” Neither the sample nor the specification sheet show the optical fiber strands as being combined with an aramid or other optical fiber cable strengthener. No specifications with respect to the fiber’s manufacture, e.g., core, cladding, or sheathing, were provided.

Upon entry, protestant classified the merchandise under subheading 8544.70.00, HTSUS, which provides for “[I]nsulated . . .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[.]” You determined that the merchandise was properly classifiable under subheading 9001.10.00, HTSUS, which provides for “[o]ptical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; sheets and plates of polarizing material; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked[.]” On August 21, 2001, Customs amended its position (provided on Customs Form 6445A), classifying the merchandise under subheading 9013.80.90, HTSUS, which provides for “[l]iquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof: Other devices, appliances and instruments: Other.”

ISSUE:

Whether a band pass separator device with individual optical fibers is classifiable under heading 8544, HTSUS, as “optical fiber cables, made up of individually sheathed fibers,” or heading 9013, HTSUS, as “other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof[.]”

LAW AND ANALYSIS:

Initially we note that the protest was timely filed (i.e., within 90 days after, but not before the notice of liquidation; see 19 U.S.C. §1514(c)(30(A)), and the matter is protestable (see 19 U.S.C. §1514(a)(2) and (5)).

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs.

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).

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:

Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof:

Other devices, appliances and instruments:

9013.80.90 Other

At GRI 1, heading 8544, HTSUS, provides in pertinent part, for “optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors[.]” Protestant claims the goods are classified herein. EN 85.44 states that the heading also covers:

“optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors. The sheaths are usually of different colours to permit identification of the fibres at both ends of the cable. Optical fibre cables are used mainly in telecommunications because their capacity for transmission of data is greater than that of electrical conductors.”

Section XVI, Note 1(m), HTSUS, states that the section does not cover “[a]rticles of chapter 90.” Chapter 90, note 1(h), HTSUS, provides in pertinent part, that “optical fiber cables of heading 8544” are not covered in Chapter 90.” Thus, we must first determine whether the goods constitute “optical fiber cables,” provided for in heading 8544, HTSUS.

The legal notes and heading texts, as well as the ENs, for chapter 85, and heading 8544, HTSUS, do not provide a definition of this term. However, in Headquarters Ruling (“HQ”) 964996, dated December 5, 2001, Customs addressed the definition of an “optical fiber cable,” when it classified patchcords with connectors, one of which was made of only a single optical fiber, its 900 micron coating, and connectors. Citing common and commercial meanings, Customs noted that the Fiber Optic Reference Guide, David R. Goff, Focal Press, (1996), at p. 153, defines the term “fiber optic cable,” as “[a] cable containing one or more optical fibers[,]” and a “cable” as: “[o]ne or more optical fibers enclosed within protective coverings(s) and strength members.”

Customs also cited, Telecommunications: Glossary of Telecommunication Terms,” published by the National Communications System Technology & Standards Division, General Services Administration, Information Technology Section, (August 7, 1997), which defines a “fiber optic cable” as “[a] telecommunications cable in which one or more optical fibers are used as the propagation medium. Note 1: The optical fibers are surrounded by buffers, strength members, and jackets for protection, stiffness, and strength.” Customs determined that although “an optical fiber cable may be made of one or more optical fibers, it must include additional materials, including strengthening members, to constitute a cable.”

The BPSD has one or two unjacketed optical fiber strands inserted, in an unexplained and undocumented manner, into a stainless steel cylinder. Absent any additional visible buffers, protective materials, or strengthening members, the individual optical fiber strands do not constitute “optical fiber cable” and the good is not classifiable under heading 8544, HTSUS.

Heading 9013 provides, in pertinent part, for “other optical appliances and instruments, not specified or included elsewhere in chapter 90.”

Protestant has failed to provide relevant information as to the manufacture or internal composition and structure of the BPSD. Protestant’s explanation of BPSD’s function, that it “transmits only one channel of signal, [and] other signals are reflected[,]” is deficient. The statement lacks both supporting documentary evidence or explanation of how the device performs its function.

19 C.F.R. 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 action 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 specification sheet, we find that the BPSD is useable for “Add/Drop Systems,” “Fiber Amplifier Systems,” “DWDM Systems,” “3-Port WDM Systems” and “CATV Fiber-Optic Systems.” We have classified similarly named goods as “other optical appliances or instruments” in New York Rulings (“NY”) H87578, dated February 6, 2002, and F83918, dated March 15, 2000. Though the available record lacks more precise evidence, we conclude that the BPSD meets the description of “an optical instrument or appliance. “

Thus, at GRI 1, we find that the BPSD is classifiable in subheading 9013.80.90, HTSUS, which provides for “. . . .other optical appliances and instruments, not specified or included elsewhere in this chapter; . . . : Other devices, appliances and instruments: Other[.]”

HOLDING:

The subject band pass separator device is classifiable at GRI 1, under subheading 9013.80.90, HTSUS, which provides for “[l]iquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof: Other devices, appliances and instruments: 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 of Information Act, and other methods of public distribution.

Sincerely,


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