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HQ 966076




February 21, 2003

CLA-2 RR:CR:GC 966076 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.90

Port Director
U.S. Customs Service
150 North Royal Street
Mobile, AL 36602

RE: Protest 1901-02-100088; Fixed attenuators

Dear Port Director:

This is our decision regarding Protest 1901-02-100088, filed on behalf of Nortel Systems, Inc. (protestant), concerning the classification of fixed attenuators under the Harmonized Tariff Schedule of the United States (HTSUS). The subject entries were liquidated on January 11, 2002, and this protest was filed on March 22, 2002. In preparing this decision, consideration was given to a telephone conference held with protestant’s representative and a member of my staff on January 21, 2003, and protestant’s additional submission of January 22, 2003.

FACTS:

Protestant described the subject goods as attenuators, models A0733558 and A0733589. Protestant provides that the subject goods are “very simple devices that reduce the power of optical signals.” They function to reduce the strength of a beam of light passed through them. They “only contain a piece of glass, [apart] from [their] metal/plastic body . . ..” These attenuators are devices that have no capacitors, isolators, resistors, integrated circuits, or other electronic components.

At entry, a Nortel invoice described model A0733558 as an “optical attenuator,” and model A0733589 as a “fixed attenuator.” Customs determined the optical attenuators were “variable optical attenuators” classifiable in subheading 9031.49.90, HTSUS, which provides for, in pertinent part, “[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . .: Other: Other[;]” and “fixed attenuators” classifiable in subheading 9013.80.90, HTSUS, which provides for, in pertinent part, “. . . “other optical appliances and instruments, not specified or included elsewhere in this chapter . . .: Other devices, appliances and instruments: Other[.]”

However, in its January 22, 2003 supplemental submission, protestant made clear that models A0733558 and A0733589 are both fixed attenuators. As a result, the subject protest solely concerns the classification of fixed attenuators.

Protestant claims the subject fixed attenuators are classifiable in subheading 8517.50.00, HTSUS, as “[e]lectrical apparatus for line telephony or line telegraphy, including . . . telecommunications apparatus for carrier-current line systems or for digital systems . . .; parts thereof: Other apparatus, for carrier-current line systems or for digital line systems[;]” or in subheading 8517.90.00, HTSUS, as “. . .: Parts[.]”

ISSUE:

What is the classification of the subject fixed attenuators?

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).

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The HTSUS provisions under consideration are as follows:

Electrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunication apparatus for carrier-current line systems or for digital line systems; videophones; parts thereof:

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: [emphasis added.]

9013.80 Other devices, appliances and instruments:

Other

At GRI 1, heading 8517, HTSUS, provides in pertinent part, for “[e]lectrical apparatus for line telephony or line telegraphy, including . . . telecommunication apparatus for carrier-current line systems or for digital line systems; . . . ;parts thereof[.]”

However, Section XVI, Note 1(m), HTSUS, in pertinent part, provides that the section does not cover “[a]rticles of chapter 90.” Thus, at GRI 1, we must first address whether the subject fixed attenuators are described in heading 9013, HTSUS, before determining whether they are classifiable in heading 8517, HTSUS.

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

According to the Fiber Optic Reference Guide, David R. Goff, Focal Press, (1996), at p. 152, an “attenuator” is defined as “a passive device for reducing amplitude of a signal without appreciably distorting the waveform.” As noted above, the subject attenuators’ function is to reduce the strength of a beam of light passed through them. Further, according to protestant, these attenuators are simple optical devices that have no capacitors, isolators, resistors, integrated circuits, or other electronic components.

Protestant claims that the subject goods are “optoelectronic attenuators,” “specially designed and exclusively for use” in Nortel’s wideband optical OC transmission systems, and therefore, not classifiable under heading 9013, HTSUS. To support this claim, protestant provided a list of components from the 1600G Amplifier Network Application Guide NTY314AE (Table 8-47) (Rel 5 Issue 3 Standard, April, 2002), that includes certain attenuator model numbers that “may be required” at the input of each amplifier to obtain an input power level that will yield optimal amplifier performance. This explanatory language is not mandatory in nature, and thus suggests that other, generally available, fixed attenuators function to reduce the amplitude of the input power level of light beams to yield optimal amplifier performance.

The above list includes the two subject attenuator model numbers but protestant has not provided how these models function, whether or not they are fungible with respect to the other attenuators listed, or how they are limited in their manufacture to use for this specific purpose. Similarly, protestant does not document how these goods are “specially designed and exclusively for use in Nortel’s wideband optical OC transmission systems,” despite repeated requests to do so.

Protestant’s description of the goods’ composition, that “they only contain a piece of glass, [apart] from the metal/plastic body[,]” is deficient. Protestant’s claims that the subject attenuators are “opto-electronic” devices, not described in heading 9013, HTSUS, are not supported by evidence. Further, protestant provides no evidence of how the attenuators’ optical elements are subsidiary to their electronic elements.

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.

Although protestant provided a general schematic of the subject attenuators it failed to provide relevant information as to the manufacture or internal composition and structure of these goods. Protestant’s description of the attenuators’ function, that these “attenuators are very simple devices that reduce the power of optical signals . . . whenever a signal level has to be reduced[,]” suggests that these attenuators are not specially designed or exclusively used for one purpose. Further, a manufacturer’s product specification sheet, submitted by the protestant, provides that the subject attenuators are useable for several purposes, including: linearity and dynamic range testing in laboratory equipment, optical power equalizations, receiver padding for optical receiver protection and fiber optic systems (Appendix D, Nortel Protest, March 22, 2002). In summary, there is no evidence of a principle use.

Specification sheets and pictures from the manufacturers’ of the subject goods confirm, however, that these goods are bought and sold as fixed optical attenuators. Although no complete description of the attenuators’ optical elements has been provided, Customs has determined that fixed optical attenuators have optical elements, e.g., coated glass substrates used as a glass filter and considered an optical element for tariff classification purposes. See New York Ruling (NY) 858977, dated January 14, 1991.

At GRI 1, the subject fixed attenuators are described in heading 9013, HTSUS, as “other optical appliances and instruments.” Having established that the subject goods satisfy the terms provided in heading 9013, HTSUS, at GRI 1, consideration of any other headings is precluded.

Our determination is supported by prior rulings. In NY 858977, supra, Customs determined that fixed optical attenuators reduced the amplitude of the beam of light directed into the devices by acting as a glass filter and, therefore, were classifiable in heading 9013, as “other optical appliances and instruments.”

Further, Customs has determined that another simple optical device, a “band pass separator,” was classifiable in heading 9013, HTSUS, as “other optical appliances and instruments[.]” See Headquarters’ Ruling (HQ) 965287, dated July 30, 2002. In HQ 965287, the protestant failed to provide relevant information concerning the manufacture or internal composition and structure of the good but, as in the instant case, specification sheets submitted by the protestant provided that the good was useable for several purposes and not exclusively for the one claimed.

HOLDING:

At GRI 1, the subject fixed attenuators, models A0733558 and A0733589, are classifiable in 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[.]”

You are instructed to DENY the protest in FULL.

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 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.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,


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