CLA-2 CO:R:C:M 955230 RFA
Mr. Arne Midtskog
Midtskog & Associates
17221 N.E. 152nd Street
Woodinville, WA 98072
RE: Opticall Fiber Optic Talk Set; Telephone Test Set; Heading
9031; Additional U.S. Note 3 to Chapter 90; HQ 954057; HQ
954869, affirmed; DD 888654, revoked
Dear Mr. Midtskog:
This is in response to your letter dated October 12, 1993,
requesting reconsideration of DD 888654, issued to you on August
13, 1993, by Customs in Buffalo, NY, involving the tariff
classification of the Opticall Fiber-Optic Talk Set ("Opticall")
under the Harmonized Tariff Schedule of the United States
(HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186
(1993)(hereinafter, "section 625"), notice of the proposed
revocation of DD 888654 was published on June 8, 1994, in the
Customs Bulletin, Volume 28, Number 23. No comments were
received. Our decision in this matter is set forth below.
FACTS:
The merchandise, labeled as the "Opticall", is a telephone
test set used for testing disconnected ("dark" or "dead") fiber
optic cables. It consists of a hand set and a portable base
unit. Telephone "test sets" are designed for use in telephonic
installation and repair, central office frame and switch train
analysis, PABX and station equipment installation, and trouble
isolation.
The Opticall provides an intercommunication facility between
two distant sites by transmitting and decoding digital light
signals sent along the fiber. Additionally, it provides two test
features: a stabilized light source (constant level light output)
for optical fiber-optic loss measurement at the remote end; and a
special marker tone for fiber-optic identification at the distant
end.
The merchandise is used by telecommunications technicians
for communications and testing of fiber-optics. The stabilized
light source of the Opticall is the equivalent of a constant
level tone. If the light level is constant, it is possible to
measure the light level (with a light level meter) at the source
and then measure it again at the far end of the fiber. The
difference is the optical loss of the fiber.
ISSUE:
Is the Opticall classifiable as other optical measuring and
checking instruments, appliances, and machines under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
In DD 888654, dated August 13, 1993, Customs in Buffalo, NY,
determined that the Opticall was classifiable under subheading
9031.40.00, HTSUS, which provides for: "[m]easuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter . . .: [o]ther optical instruments and
appliances: [o]ther. . . ."
In HQ 954869, dated February 9, 1994, Customs Headquarters
determined that the Opticall, which is used to check telephonic
operations, was classifiable under subheading "[m]easuring or
checking instruments, appliances and machines, not specified or
included elsewhere in this chapter. . .: [o]ther instruments,
appliances and machines . . . ." Customs based this decision on
prior rulings in which certain telephone hand test sets, which
were designed to check the telephonic operation of copper wires,
were determined to be classifiable under subheading 9031.80.00,
HTSUS. See HQ 954057 (July 26, 1993); HQ 089928 (November 6,
1991); and HQ 089594 (September 26, 1991).
To classify merchandise as an "optical appliance" or
"optical instrument", it must meet the requirements of Additional
U.S. Note 3 to chapter 90, which states as follows:
[f]or the purposes of this chapter, the terms "optical
appliances" and "optical instruments" refer only to
those appliances and instruments which incorporate one
or more optical elements, but do not include any
appliances or instruments in which the incorporated
optical element or elements are solely for viewing a
scale or for some other subsidiary purpose.
A tariff term that is not defined in the HTSUS or in the
Harmonized Commodity Description and Coding System Explanatory
Notes (EN) is construed in accordance with its common and
commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69
CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may
be determined by consulting dictionaries, lexicons, scientific
authorities and other reliable sources. C.J. Tower & Sons v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982).
In HQ 088941, dated January 16, 1992, Customs, citing
Webster's II New Riverside University Dictionary (1984), p. 1155,
defined "subsidiary" as "[s]erving to supplement or assist . . .
[s]econdary in importance: subordinate." Customs further stated
that "[t]he meaning of 'subsidiary' has nothing to do with the
amount of time optics are used in the overall use of a device,
but it relates more to the type of task which the optics perform
when being used in the operation of the device."
The Opticall is designed to be used to test fiber-optic
wires and does not incorporate optics itself. The task being
performed by the subject merchandise is on the optics.
Therefore, the Opticall does not meet the definition of
Additional U.S. Note 3 to chapter 90 as an "optical appliance" or
an "optical instrument". We find that the classification of the
Opticall in HQ 954869 was correct and that DD 888654 should be
revoked.
HOLDING:
The Opticall Fiber Optic Talk Set is classifiable under
subheading 9031.80.00, HTSUS, which provides for: "[m]easuring or
checking instruments, appliances and machines, not specified or
included elsewhere in this chapter . . . : [o]ther instruments,
appliances and machines. . . ." The general, column one rate of
duty is 4.9 percent ad valorem.
In accordance with section 625, this ruling will become
effective 60 days after publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations [19 CFR
177.10(c)(1)].
Sincerely,
John Durant, Director