CLA-2 RR:CR:GC 966479 DSS

Port Director
U.S. Customs and Border Protection
40 S. Gay Street
Baltimore, MD 21202

RE: Internal Advice request; undersea fiber optic cable repair kits

Dear Port Director:

This is in response to your memorandum dated May 13, 2003, regarding an unnumbered Internal Advice request. In a letter to you, dated March 14, 2003, John S. Conner, Inc., on behalf of Tyco Communications (importer), requests internal advice on the classification of various fiber optic cable repair kits under the Harmonized Tariff Schedule of the United States (HTSUS). The Chief, Metals and Machinery Branch, National Commodity Specialist Division (NCSD), forwarded your memorandum to our office, with an accompanying NCSD memorandum dated July 7, 2003. The importer also made a factual and legal presentation during a teleconference with members of my staff on January 13, 2004.


The three types of undersea fiber optic cable repair kits at issue are called the common component kit assembly, the end-specific kit assembly and the protection kit assembly. The importer designs and builds undersea fiber optic cables. The importer states that sections of these cables can be connected by mechanical assemblies called “joints.” The importer offers cable-specific components necessary to repair and connect many types of undersea cables. The importer argues that in jointing undersea cables it is necessary to reinstate both the tensile and mechanical strength of the cable, as well as the fiber optic strands therein. The kits do not contain any fiber optic elements. The end-specific kits come in different models which match individual models of fiber optic cables and contain cable-specific components. Kits may be updated as fiber optic cables improve; as they do, new models of kits are created but all kits perform the same basic types of functions.

The kits contain various component materials to aid in connecting the spliced fiber optic cable. For example, the common component kit contains various components of steel (e.g., fiber bend limiter, fiber management tray, splice clamps), plastics (e.g., kingwire separator, splice clamp strips, retaining sheets), copper (seals), and various fasteners (i.e., bolts or screws). The other kits contain similar types of items, which constitute the basic materials to be used to connect ends of fiber optic cable. Lists of parts for the assemblies were submitted. The importer points out that the lists are representative of the types of assemblies used, although kits for specific cables may have slightly different parts. The kits generally function in the same manner, however. All three kits are necessary to construct a single joint.

When cables need repair, a repair vessel goes out into the ocean to the location where the damaged cable is and pulls the damaged cable to the surface. The crew cuts out and removes the damaged portion of cable and a new one is put in its place; the instant repair kits provide the raw materials necessary to connect the new section of cable to the existing cable. The fibers from the two ends of the existing cable are fed into the end-specific kit assembly; the components of the end-specific assembly work together to provide the tensile strength of the new “joint” that is formed and assist in mechanically aligning the cable fibers to facilitate transmission of the fiber optic signal. The two ends of the end-specific assemblies are mated with the common component kit assembly to connect the two sections of cable. The protection kit assembly will provide the outer protection for the new joint; it may or may not include armor depending on the cable type used. ISSUE:

Whether the instant fiber optic repair kits are classified as apparatus for digital line systems of heading 8517, HTSUS, as parts under that heading, or according to the component parts of each repair kit.


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. GRI 2 is not applicable here except insofar as it provides that “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3(b) provides, in relevant part, as follows:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other:

* * * * Other articles of iron or steel: Other: Other

* * * * Electrical apparatus for line telephony or telegraphy, including line telephone sets with cordless handsets and telecommunication apparatus for carrier-current line systems or for digital line systems; videophones; parts thereof: 8517.50 Other apparatus, for carrier-current line systems or for digital line systems: Other: Telegraphic: Other * * Parts: Other: Other: 8517.90.66 For telegraphic apparatus

The importer claims that the repair kits are classified under heading 8517, HTSUS, as telecommunications apparatus for digital line systems, or, alternatively, as parts of telecommunications apparatus for a digital line system. In part, EN 85.17 states that:

[t]he term "electrical apparatus for line telephony or line telegraphy" means apparatus for the transmission between two points of speech or other sounds (or of symbols representing written messages, images or other data), by variation of an electric current or of an optical wave flowing in a metallic or dielectric (copper, optical fibers, combination cable, etc.) circuit connecting the transmitting station to the receiving station. The heading covers all such electrical apparatus designed for this purpose, including the special apparatus used for carrier-current line systems. * * * (III) Apparatus for Carrier-Current Line Systems or for digital line systems

These systems are based on the modulation of an electrical-current or of a light beam by analogue or digital signals. Use is made of the carrier-current modulation technique and pulse code modulation (PCM) or some other digital system. These systems are used for the transmission of all kinds of information (words, data, images, etc.).

These systems include all categories of multiplexers and related line equipment for metal or optical-fiber cables. “Line equipment” includes transmitters and receivers or electro-optical converters. Combined modulators-demodulators (modems) are also classified here.

The EN also notes that the heading excludes: ”(h) Insulated electric wire, cable, etc, whether or not fitted with connectors, including cords with plugs for switchboards (heading 8544).” The repair kits are not telecommunications apparatus for carrier-current or digital line systems. The repair kits do not modulate a light beam by digital signal between two points; rather these assembly kits contain the raw materials necessary to reconnect sliced fiber optic cable. The kits do not fall within the text of heading 8517 or meet the definition of telecommunications apparatus for carrier-current or digital line systems cited in EN 85.17. In fact, the kits provide the raw materials for splicing fiber optic cables, which fall under heading 8544, HTSUS. Therefore, they cannot be classified as articles of heading 8517, HTSUS.

The importer cites HQ 964874, dated September 26, 2002, to support its claimed classification as apparatus under heading 8517, HTSUS. In HQ 964874, it was determined that the optical repeaters at issue were finished devices used exclusively with long-haul digital telecommunication equipment and housed the apparatus necessary for the amplification of light signals traveling through the spliced fiber optic cables. Those articles housed several electrical and optical devices, including an amplifier, pump lasers, diodes, line cards, and communications cards. The electrical and optical devices of HQ 964874 actively aided in the transmission of signals over the fiber optic cable and were therefore classified as “telecommunications apparatus” under 8517.50.90, HTSUS. In contrast, the instant articles are merely the raw materials necessary to reconnect spliced optical fiber cables. They are not apparatus for purposes of heading 8517.

Nor can these kits be classified as parts of the apparatus of heading 8517, HTSUS. In Bauerhin Technologies Limited v. United States, 19 CIT 1441, 914 F. Supp. 554 (1995), aff’d, 110 F.3d 774 (Fed. Cir. 1997), the court pointed out that there are two distinct lines of cases defining the word "part" in the tariff. Starting with United States v. Willoughby Camera Stores, Inc., 21 CCPA 322, 324, (1933) T.D. 46075 (1933), cert. denied, 292 U.S. 640 (1934), this line of cases holds that a part of an article "is something necessary to the completion of that article without which the article to which it is to be joined, could not function as such article." Another line of cases evolved from United States v. Antonio Pompeo, 43 CCPA 9, C.D. 1669 (1955), which held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed, the article will not operate without it. From the information provided, it is evident that by design and function these kits are designed to be used solely on fiber optic cables. The repair “kits” do not satisfy the rule in the cases above because they are not integral or constituent components of the telecommunications apparatus themselves. The apparatus do not rely on the fiber optic cable for their completeness; apparatus of this heading, such as optical repeaters, are complete and fully functional in and of themselves. We conclude that the available evidence does not support a claim for parts under heading 8517. Instead, the repair kits are used to repair and reconnect fiber optic cables of heading 8544.

The kits merely provide the materials to reconnect a fiber optic cable that has had a damaged portion removed or to aid in the clamping or holding of such a connection in place. The kits achieve this by mechanical alignment and reconnection of two halves of an undersea optical cable or by attaching a new section of undersea optical cable. Other fiber optic cable connectors have been classified according to their constituent materials. See HQ 955389, dated June 29, 1994; HQ 960922, dated August 3, 1998; and NY H82843, dated July 23, 2001. In these cases non-electrical articles aided in the connection of fiber optic cables; these articles were classified according to their constituent materials, not in Chapter 85.

The kits are not fiber optic cables themselves, therefore, they do not fall under heading 8544, HTSUS, which provides for fiber optic cables. All three kits are described as used in the “jointing” of undersea fiber optic cables; they do not contain any fiber optic components. Additionally, as there is no provision for parts in heading 8544, the components or kits would not fall under that heading. The common component kit assembly contains the basic elements necessary for reconnecting the severed cable and holding the joint in place. The end-specific kit assemblies contain the components used to mechanically lock onto a cable end, specific to a particular type of cable. None, of the kits fall under the headings for fiber optic cables or other headings in Chapter 85. Indeed, we are unable to resolve the classification of the kits at GRI 1 because the kits contain goods under multiple headings. GRI 2 is not applicable, therefore, we must go on to GRI 3.

We are not able to classify the kits at GRI 3(a) because the headings of the various components are equally specific in relation to the kits. The kits contain various metal sleeves and plastic coatings as well as various fasteners, such as bolts and screws. The kits are sets. To determine what is a set, EN Rule 3(b)(X), provides a three-part test:

For the purposes of this Rule, the term ‘goods put up in sets for retail sale’ shall be taken to mean goods which: (a) consist of at least two different articles which are prima facie, classifiable in different headings; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repackaging (e.g., in boxes or cases or on boards).

Applying the above GRI 3(b) EN criteria, the instant kits contain different goods that are prima facie classifiable in different headings according to their constituent material. For example, the information supplied by the importer indicates that the common component kit includes, among other items, the following: steel fibre bend limiter and steel guide pin (heading 7326); plastic kingwire separator and plastic fiber separator (heading 3926); steel screws (heading 7318); various copper seals (heading 7415); and polyethylene granules (heading 3901). Criteria (a). The goods are put up together to meet the particular need of repairing an undersea fiber optic cable. Criteria (b). Each kit contains exactly the number of components required for its function. For example, the end-specific kit components are in a protective case with gray foam molded compartments for each component. This suggests that the goods are put up in a manner suitable for sale directly to users without repacking. Criteria (c). In order to determine the classification of the set, we must determine the essential character of the set. EN (VIII) to GRI 3(b) provides:

The factor which determines the essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The component of the end-specific kit that provides the essential character is the steel ferrule, which provides mechanical alignment of the optical fibers and provides strength to the fibers. The steel ferrule is classified under subheading 7326.90.85, HTSUS. The component of the common component kit that provides the essential character is the steel fiber management tray, which forms the base to which the end specific kits are attached; the steel fiber management tray is classified under subheading 7326.90.85, HTSUS.

The protection kits, generally speaking, contain the components necessary to provide the outer protection for the undersea fiber optic cable joint; these kits have been presented as being representative of many similar kits with identical end uses. According to the cost breakdown provided, the most expensive component of the kits is the protective case. The primary components of the kits used in “jointing” are the buffers, which are made of plastic, and the buffer seating ring, the sleeve armor, and the buffer bend limiter (present only in the UJ Armored Protection Kit 10020 A&B), which are made of steel. However, the buffer fills the cable diameter up to the splice box and provides the bending point of the joint. Thus, we consider the polyurethane buffers as imparting the essential character to these protection kits. The protection kits are classified under subheading 3926.90.98, HTSUS, as other articles of plastic.


Under the authority of GRI 3(b), the common component assembly kits and the end-specific kits are provided for in heading 7326, HTSUS. They are classified under subheading 7326.90.85, HTSUS, which provides for, “Other articles of iron or steel: Other: Other.” The protection kits are provided for under heading 3926, HTSUS. They are classified under subheading 3926.90.98, HTSUS, which provides for, ”Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other. “

This decision should be mailed by your office to the internal advice requestor no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs and Border Protection Home Page on the World Wide Web at, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon
Commercial Rulings Division