CLA-2 RR:CR:GC 960360 JAS
Port Director of Customs
605 W. Fourth Avenue
Anchorage, AK 99501
RE: PRD 3195-95-100193; Cletop Type A Connector Cleaner, Self- Contained Fiber Optic Connector Cleaning Device; Hand-Held Device for Cleaning Contaminants From the Ends of Fiber Optic Connectors; Other Made Up Textile Articles; Heading 8479, Other Machines and Mechanical Appliances;
Trans Atlantic Co. v. U.S., HQ 089411, HQ 950065, HQ 952552,
HQ 956882; Composite Good, Essential Character, GRI 3(b)
Dear Port Director:
This is our decision on Protest 3195-95-100193, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS), of a hand-held device for cleaning
the ends of fiber optic connectors. The entry under protest was
liquidated on January 20, 1995, and this protest timely filed on
April 20, 1995. Counsel for protestant made additional factual
and legal arguments at a meeting in our office on December 18,
1997, which he confirmed in a submission of the same date.
FACTS:
The merchandise in issue is the Cletop (Type A) connector
cleaning device, a product of Japan. Other models of the device
operate similarly but are not the subject of this protest. Also
called an optical fiber connector cleaner, the device is a hand-held, spring-loaded mechanism of plastic, measuring 5.9 in. x
5.15 in. x 0.4 in. It utilizes a tape or belt of polyester film
made up of very thin fibers, on a spool, to clean dirt, dust,
grease, and oil from the ends of fiber optic connectors or
ferrules. The contaminants are trapped within the fibers of the
belt and remain there. In use, the operator inserts and rotates
the connector end first into one slot on the device to clean the
connector end, then into a second slot to finish-wipe the end. A
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thumb-activated metal lever opens shutter doors for the slots and
shutter doors for the slots and also advances fresh sections of
the belt.
The merchandise was entered under a provision in heading
8479, HTSUS, for other machines and mechanical appliances. The
entry was liquidated under a provision in heading 9002, HTSUS,
for other optical elements, on the apparent belief that the
cleaning device incorporated an optical element. Your office now
believes that the actual cleaning of the connector end is done
manually and the mechanical features of the device do not
actively enhance this function. For this reason, and because the
only functional part of the device is the textile belt, you
believe heading 6307, HTSUS, other made up textile articles,
represents the correct classification.
The provisions under consideration are as follows:
6307 Other made up [textile] articles...:
6307.90 Other:
6307.90.99 Other
* * * *
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]...:
Other machines and mechanical appliances:
8479.89 Other:
8479.89.90 (now 97) Other
* * * *
9002 [o]ther optical elements...being parts of or fittings for instruments or apparatus...:
9002.90 Other:
9002.90.90 (now 95) Other
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ISSUE:
Whether a device for cleaning the ends of fiber optic
connectors is a machine or mechanical appliance of heading 8479;
whether it is a composite good classifiable according to its
essential character.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 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 provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Citing dictionary definitions and court decisions, counsel
maintains that the optic fiber connector cleaner is within the
common meaning of the term "machine" for tariff purposes because
it is a system of related elements that utilize definite motions
and operates in a consistent, definable way. In addition, it has
moveable parts and must utilize, apply, or modify force, or be
used to transmit motion.
Alternatively, counsel maintains that dictionary definitions
establish that the connector cleaner is a "mechanical appliance"
for purposes of heading 8479. He analogizes the connector
cleaner to the hand-held carton sealing device which HQ 952552,
dated October 30, 1992, held to be a mechanical appliance of
heading 8479. That device consisted of a spring pressure bar,
plastic roller, and metal cutting blade, all within a metal body.
The bar held a roll of adhesive tape in place and the plastic
roller was used to apply force to the tape as it was applied to
tightly seal the flaps of boxes. We do not agree that this case
supports counsel's position. In our opinion, the cleaning device
under consideration here is functionally different from the
carton sealing device in HQ 952552, the mechanical features of
which directly facilitated the application of tape to close the
box lids, i.e., the work being done.
The direct connection between the mechanical features of a
device and the doing of work is further exemplified in HQ 089411,
dated June 20, 1991, in which ratchet tie downs were held to be
classifiable in subheading 8479.89.90, HTSUS. These articles
contained a gear and pawl mechanism which tightened a nylon
strap, thus securing a load in place, i.e., the work being done.
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In his December 18, 1997, submission, counsel cites HQ
956882, dated October 6, 1994, in which Customs classified
overhead exhaust reels used to hold and store hoses for
extracting exhaust fumes from welding shops and automotive repair
facilities as machines and mechanical appliances in subheading
8479.89.90, HTSUS. We find this case to be factually
distinguishable because, unlike the case here, the manual action
of operating the device directly precipitated the dispensing and
retracting of the hoses, which was the work being done. In
addition, certain coiling machines, similar in function to the
overhead exhaust reels, were among the devices listed in the
Harmonized Commodity Description and Coding System Explanatory
Notes for heading 84.79.
On a case-by-case basis, decisions under prior nomenclatures
should be considered instructive in interpreting the HTSUS,
particularly where the previous nomenclature and that of the
HTSUS is the same or nearly the same, and no dissimilar
interpretation is required by the text of the HTSUS. For this
reason, Trans Atlantic Co. v. United States, C.D. 2678, aff'd.
C.A.D. 909 (1967), decided under a predecessor nomenclature to
the HTSUS, is instructive as to the common meaning of the word
machine. In that case, the court considered lock sets consisting
of two opposing door knobs and a latch or tongue mechanically
interconnected. In an operation said to utilize springs,
inclined planes and levers, turning either door knob withdrew the
latch from its aperture in the door frame and permitted the door
to open. The court rejected the claim that the lock sets were
machines for tariff purposes, concluding that they did not make
or act on something outside themselves, that is, they did no work
in a tariff sense. Also, there was no evidence that the lock
sets were commercially bought and sold or regarded in the trade
as machines. The court stated that mechanical complexity alone
was not sufficient to make the lock sets machines.
Like the merchandise in Trans Atlantic, as well as HQ 952552
and HQ 089411, the fiber optic connector cleaner in issue here
has movable parts. However, advancing new lengths of textile
cloth is not "work" for tariff purposes as the device does not
act on something outside itself. The cleaning of fiber optic
connector ends - the work in this case - is not performed by the
cleaner. It is performed manually. For this reason, the fiber
optic connector cleaner is not a machine or mechanical appliance
of heading 8479. Likewise, contrary to counsel's assertion on p.
10 of its memorandum filed in support of this protest, there is
no evidence that the subject connector cleaners are marketed and
used as "machines" for cleaning optical fiber connectors.
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GRI 3(b), HTSUS, in part states that a composite good
consisting of different materials or made up of different
components shall be classified as if it consists of the material
or component which gives the good its essential character. In
this case, the connector cleaner consists essentially of the
textile fiber cloth in a plastic housing or body. Clearly, it is
the cloth that imparts the essential character to the device
because it is the component that performs the actual cleaning
function. The plastic body is a mere holder and performs no
specific function. See HQ 950065, dated December 4, 1991.
HOLDING:
Under the authority of GRI 3(b), the Cletop Type A Connector
Cleaner is provided for in heading 6307. It is classifiable in
subheading 6307.90.99, HTSUS.
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 should 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 take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division