CLA-2 CO:R:C:M 088492 JMH
District Director
U.S. Customs Service
511 N.W. Broadway Fed. Bldg.
Portland, OR 97209
RE: Protest and Request for Further Review 2904-0-000061, dated
May 16, 1990; SPL3 Strain Measurement System; electronic
fiber strain measurement system; measuring or checking
instruments, appliances and machines; machines and
appliances for testing the hardness, strength,
compressibility, elasticity or other mechanical properties
of materials
Dear Director:
The following is our decision regarding the Protest and
Request for Further Review No. 2904-0-000061, dated May 16, 1990.
At issue is the classification of the SPL3 Strain Measurement
System manufactured by EG&G Fiber Optics of England and imported
by Photon Kinetics of Beaverton, Oregon.
FACTS:
The article in question is the SPL3 Strain Measurement
System ("SPL3"). Upon importation the SPL3 was classified under
subheading 9031.40.00, Harmonized Tariff Schedule of the United
States Annotated ("HTSUSA"), as "Measuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter...Other optical instruments and
appliances..." This classification was based upon the brochure
entered with the SPL3. However, apparently the importer
submitted the incorrect brochure with the SPL3. The brochure
submitted was for the CD3/2300 System, which is also imported by
Photon Kinetics.
The CD3/2300 measures chromatic dispersion and other
parameters of optical fibers. It is a more complex apparatus
than the SPL3. The CD3/2300 includes two LEDs which are subject
to electronic modulation at two superimposed electrical
frequencies of 217Hz and 50 MHz. A phase change is introduced by
the chromatic dispersion effect as signals are transmitted along
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the fiber. The CD3/2300 measures the difference in electrical
phase with two lock-in amplifiers tuned to the two frequencies
referred to above. The measured phase difference is directly
related to the chromatic dispersion parameter. The CD3/2300 can
also measure the length of the fiber by recording the actual
electronic phase at 50 MHz rather than the differential phase
change between 217 Hz and 50 MHz signals. If the fiber is
elongated, measurements of such length changes by the machine
give an additional parameter of the fiber known as strain. This
is measured by the internal electronics of the system.
The SPL3 is a simplified version of the CD3/2300. The SPL3
is designed for routine characterizations of fiber strain, length
and transmitted optical power. The unit incorporates one or
more light emitting diode ("LED") sources which provide
measurements at either discrete or programmable wavelengths.
Wavelength discrimination occurs by either highly stable
interference filters or a solid state monochromator. With the
insertion of the additional electronic modules a spectral
attenuation option and a chromatic dispersion upgrade option are
available.
Each system contains two units, one containing the optical
section and the other containing signal processing electronics.
All control and data processing of the SPL3 is through a
software package accessed via the computer keyboard. The SPL3 is
controlled by a Hewlett-Packard 300 series controller via the
IEEE 488 interface bus. The optical section provides input and
output connectors to the fiber under test. Three optical source
options are available: (1) 1310nm transmission window; (2) 1310
and 1550nm transmission windows; and (3) programmable wavelengths
in the 1300 and the 1550nm windows.
The SPL3 is used in both production environments and in
research and development laboratories for studies of mechanical
design aspects of single mode fibers and cabled fibers.
Applications of the SPL3 include tensile testing, thermal
cycling, strain monitor, stress corrosion studies, proof testing
and design optimization, microbending and loss studies, delay
measurements, fiber group index, photoelastic effects, and fiber
strain as a function of cable strain.
The importer believes that the SPL3 is properly classified
under subheading 9024.80.00, HTSUSA, as "Machines and appliances
for testing the hardness, strength, compressibility, elasticity
or other mechanical properties of materials (for example, metals,
wood, textiles, paper, plastics), and parts and accessories
thereof...Other machines and appliances..." We note that the
CD3/2300 is currently being imported by Photon Kinetics under
this classification.
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ISSUE:
Whether the SPL3 is properly classified under heading 9024,
HTSUSA, as "Machines and appliances for testing the hardness,
strength, compressibility, elasticity or other mechanical
properties of materials (for example, metals, wood, textiles,
paper, plastics), and parts and accessories thereof..." or under
heading 9031, HTSUSA, as "Measuring or checking instruments,
appliances and machines, not specified or included elsewhere in
this chapter..."
LAW AND ANALYSIS:
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation ("GRIs"). GRI 1,
HTSUSA, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes and..." The headings in
contention are heading 9024 and 9031. These headings describe
the following:
9024 Machines and appliances for testing the
hardness, strength, compressibility,
elasticity or other mechanical properties of
materials (for example, metals, wood,
textiles, paper, plastics), and parts and
accessories thereof...
* * * * * * * * * * * * *
9031 Measuring or checking instruments, appliances
and machines, not specified or included
elsewhere in this chapter...
It is the opinion of this office that heading 9024 describes
the SPL3. Explanatory Note 90.24, Harmonized Commodity
Description and Coding System ("HCDCS") states that heading 9024
"covers a wide range of machines and appliances for testing the
hardness, elasticity, tensile strength, compressibility or
mechanical properties of various materials..." HCDCS, Vol. 4, p.
1504. Although not dispositive, the Explanatory Notes are to be
utilized to determine the proper interpretation of the HTSUSA.
54 Fed. Reg. 35127, 35128 (August 23, 1989).
The SPL3 tests the tensile strength, compressibility and
other mechanical properties of fibers, which are textile
articles. The SPL3 meets the terms of heading 9024, in
accordance with GRI 1. Since the SPL3 is "specified or included
elsewhere in [chapter 90]", the SPL3 cannot be classified under
heading 9031. The appropriate classification for the SPL3 is
subheading 9024.80.00, as "Machines and appliances for testing
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the hardness, strength, compressibility, elasticity or other
mechanical properties of materials (for example, metals, wood,
textiles, paper, plastics), and parts and accessories
thereof...Other machines and appliances..."
As noted above, the importer is entering the CD3/2300,
under subheading 9024.80.00. Although this instrument is not
part of this application for further review, we deem it
appropriate to comment on its classification at this time to
avoid further confusion with the SPL3. The literature for the
model shows that the CD3/2300 is capable of performing and
primarily used for other functions than strain measurement.
Since strain measurement does not appear to be the principle use
of the CD3/2300, it is incorrectly classified under subheading
9024.80.00. The appropriate classification for the CD3/2300 is
subheading 9031.40.00, as "Measuring or checking instruments,
appliances and machines, not specified or included elsewhere in
this chapter...Other optical instruments and appliances..."
Should the importer disagree with this classification, we would
accept a request for a review under 19 C.F.R. Part 174 or Part
177, as the case may be.
HOLDING:
The SPL3 tests the tensile strength, compressibility and
other mechanical properties of fibers, which are textile
articles. The SPL3 meets the terms of heading 9024, in
accordance with GRI 1. The appropriate classification for the
SPL3 is subheading 9024.80.00, as "Machines and appliances for
testing the hardness, strength, compressibility, elasticity or
other mechanical properties of materials (for example, metals,
wood, textiles, paper, plastics), and parts and accessories
thereof...Other machines and appliances..."
The protest should be allowed in full. A copy of this
decision should be attached to the Form 19 Notice of Action for
the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division