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HQ 966722




July 29, 2004

CLA-2 RR:CR:GC 966722 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.50.4060; 9013.80.90

Port Director
U.S. Customs and Border Protection
Building #77, JFK Airport
Jamaica, NY 11430

RE: Protest 4701-03-101062; Optical communications instruments; Failure to Provide Evidence in Support of Claim, 19 CFR 174.13(a)(6)

Dear Port Director:

This is our decision on Protest 4701-03-101062 filed against your classification of two sampling modules and a gigabit Ethernet tester under the Harmonized Tariff Schedule of the United States (HTSUS). The entries were liquidated on June 3, 2003, and the protest was timely filed by Vastera Solution Services Corporation ("Vastera") on behalf of Lucent Technologies, Inc. ("Lucent") on August 14, 2003. In preparing this decision, we also considered the information provided on June 9, 2004 and June 22, 2004.

FACTS:

The first article at issue is the # J2901A Gigabit Advisor undercradle, referred to as a LAN (local area network) tester by Vastera, which performs full-duplex analysis and simulation for Gigabit Ethernet LANs. It analyzes large amounts of data generated by telecommunication high-speed networks, testing delays, latency, throughput and frame loss. It is also a traffic generator for device testing that edits and plays back to help recreate network problems. The Gigabit Advisor is an optional module for the Tektronix Ethernet Mainframe Advisor.

The other two articles at issue are sampling modules, the Tektronix 80C01-CR 20 GHz (gigahertz) Optical Sampling Module ("80C01-CR") and the Tektronix 80E03 Electrical Sampling Module ("80E03"). The 80C01-CR and the 80E03 are designed to be configured with Tektronix Digital Sampling Oscilloscopes ("DSO") to analyze optical line output. Tektronix's website states that "sampling oscilloscopes can measure signals up to an order of magnitude faster than real-time oscilloscopes, they are ideal tools for capturing and characterizing emerging serial data, datacom and telecom signals. Sampling oscilloscopes are indispensable for characterizing the high-frequency components of signals."

Tektronix's descriptive literature states such configuration with their wide variety of module's results in "complete optical test solutions for telecom (155Mbps to 43.018 Gbps) and datacom (Fibre Channel, Gigabit Ethernet, 10 Gigabit Ethernet and InfiniBand) applications." However, it appears the two models at issue are used only in telecommunications applications.

The 80C01-CR is a single-input channel optical tester that supports waveform performance of long wavelength (1100 to 1650 nanometers) signals. It is also used for general purpose testing for up to 20 GHz optical bandwidth (the total information flow over a given time). This model contains a clock recovery option. The 80E03 is a dual-channel 20 GHz bandwidth sampling module that supports waveform performance of low wavelengths. It is used in device characterization applications. Protestant states it is used for low noise measurements. The 80E03 has fewer capabilities and costs less than the 80C01-CR.

We note that the Customs Form (CF) 6445A states that the Gigabit Advisor was classified in subheading 9031.49.90, HTSUS. However, entry information from the Automated Commercial System (ACS) protest module indicates that the entry of this good was liquidated under subheading 8473.30.10, HTSUS, as printed circuit assemblies for automatic data processing machines. Protestant claims it should be classified in subheading 9030.40.00, HTSUS, which provides for other instruments and apparatus specially designed for telecommunications.

We also note that the ACS indicates that the 80C01-CR and the 80E03 were liquidated under subheading 9013.80.90, HTSUS, which provides, in part, for other optical appliances and instruments. However, the CF 6445A states they were liquidated under subheading 9030.90.88, HTSUS, which provides for other parts and accessories for goods of heading 9030, HTSUS. Protestant claims the 80C01-CR is classified in subheading 9027.50.40, HTSUS, which provides for electrical apparatus using optical radiation, and the 80E03 is classified in subheading 9030.40.00, HTSUS, described above.

ISSUE:

What is the tariff classification of the LAN tester and the two optical sampling modules?

LAW AND ANALYSIS:

Classification under the HTSUS is made 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive nor legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Both the importer, as evidenced by the filing of this protest, and you, as evidenced by the tariff provisions listed in the appraised classification column on the CF 6445, agree that the instant Gigabit Ethernet is not classified under heading 8473, HTSUS, and that the sampling modules are not classified under heading 9013, HTSUS. We concur; and therefore, we will not specifically address these provisions. Accordingly, the HTSUS provisions under consideration are as follows:

9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof:

9027.50 Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared):

9027.50.40 Electrical

9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof:

9030.40.00 Other instruments and apparatus, specially designed for telecommunications (for example, cross-talk meters, gain measuring instruments, distortion factor meters, psophometers):

9030.90 Parts and accessories:

Other:
Other:
9030.90.88 Other.

9031 Measuring or checking instruments, appliances and machines not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:

Other optical instruments and appliances:

9031.49 Other:

9031.49.90 Other .

I. Classification of Gigabit Advisor

First, we will discuss the classification of the Gigabit Advisor ("LAN tester"). As stated above, it is an optional module for a Gigabit Ethernet LAN advisor. A Gigabit Ethernet is a protocol used in LANs that provides data at a rate of 1 billion bits per second (one gigabit). Gigabit Ethernet is carried primarily on optical fiber. Therefore, although Protestant's submission refers only to "high speed telecommunications networks," we will presume for the purpose of this protest that the networks are fiber optic networks.

Protestant cited New York ruling letter (NY) G81423, dated October 3, 2000, in which a LAN tester designed to test copper telecommunications cable installations was classified in subheading 9030.40.00, HTSUS. In this case, the LAN tester is used in fiber optic telecommunications networks. Optical fiber carries information as light pulses. The LAN tester does not measure or check electrical quantities. Instead, it tests or checks light. Therefore, it cannot be classified in heading 9030, HTSUS.

Heading 9027, HTSUS, provides in relevant part for apparatus for measuring or checking quantities of heat, sound or light. In Headquarters ruling letter (HQ) 951863, dated July 10, 1992, Customs classified an optical spectrum analyzer used to analyze light and other emissions by devices which transmit information over optical fiber telecommunications networks in subheading 9027.50.40, HTSUS, because it analyzed light. See also NY H89812 (March 27, 2002); HQ 965639 (September 12, 2002) (classifying a lightwave multimeter which is a fiber-optic multipurpose measurement tool used for testing optical components and systems in subheading 9027.50.40, HTSUS). Cf. HQ 966208, (December 18, 2003) (classifying a camera used to measure and image ultraviolet and visible optical radiations in subheading 9027.50.40, HTSUS.) The instant LAN tester is used for analyzing and testing a fiber optic network (Gigabit Ethernet). As with the optical fiber testing instruments classified in the rulings above, the instant LAN tester is classified in heading 9027, HTSUS, as apparatus for measuring or checking quantities of light. Specifically, it is classified as apparatus using optical radiations in subheading 9027.50.40, HTSUS.

You stated on the CF 6445A that the LAN tester is classified in subheading 9031.49.90, HTSUS. Heading 9031, HTSUS, provides for measuring or checking instruments not specified or included elsewhere in the chapter. As the LAN tester is a good included in heading 9027, HTSUS, it is not covered by heading 9031, HTSUS.

II. Classification of Sampling Modules

We turn now to the sampling modules. These goods appear to be used solely with a Tektronix Digital Sampling Oscilloscope. The 80E03 is described as an electrical sampling module, while the 80C01 is described as an optical sampling module. Both modules are designed to handle a bandwidth of 20 gigahertz. The bandwidth is consistent with optical fiber lines, as electrical wires cannot handle a bandwidth that large. The modules appear to serve as interfaces between the optical fiber line and the sampling oscilloscope.

The 80C01 has one input channel. This module supports waveform conformance testing of long wavelengths telecommunication signals and is also used for general purpose testing. As it is an optical sampling module for use with an optical sampling oscilloscope, it constitutes apparatus for measuring or checking quantities of heat, sound or light. Accordingly, it is classified in heading 9027, HTSUS, specifically subheading 9027.50.40, HTSUS.

Under 19 U.S.C. §1514(c)(1), a protest of a decision under subsection (a) of section 1514 must set forth distinctly and specifically each decision as to which protest is made. United States v. E.H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945), United States v. Parksmith Corp., 514 F. 2d 1052, 62 CCPA 76 (1975), and related cases. In addition, the CBP Regulations require that a protest set forth the nature of, and justification for, the objection distinctly and specifically with respect to each decision. See Section 174.13(a)(6), CBP Regulations (19 CFR 174.13(a)(6)).

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. HQ 965469, August 6, 2002.

In the arguments attached to the protest, it is stated that the 80E03 module is used in "digital telecommunications." Optical lines are not specified, and the protestant claims classification within heading 9030, HTSUS, rather than heading 9027, HTSUS. However, the protestant stated via telephone discussion on June 9, 2004, that the 80E03 electrical sampling module tests optical communication lines for transmission quality, measuring or testing waveform parameters, and device characterization. Thus, the information before us is conflicting as to whether it is checking electrical or optical signals. Protestant submitted additional information at our request on June 22, 2004, but it contained no additional facts to establish how this device functions. The protestant has not responded to a further request. Due to the lack of factual specificity for this device, we are unable to determine its classification. Therefore, we must deny the protest with respect to the 80E03. See 19 CFR 174.13(a)(6).

HOLDING:

The # J2901A Gigabit Advisor LAN tester undercradle and the Tektronix 80C01-CR 20 GHz (gigahertz) Optical Sampling Module are classified in subheading 9027.50.4060, Harmonized Tariff Schedule of the United States Annotated, which provides for, "Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof: Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared): Electrical: Other." The rate of duty is free.

You are instructed to DENY the protest except to the extent that reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 Bureau of Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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