OT:RR:CTF:EMAIN H323634 MFT
Center Director
Service Port of Dallas-Ft. Worth
U.S. Customs and Border Protection
7501 Esters Blvd., Suite 160
Irving, TX 75063
ATTN: David Pulkrabek, Import Specialist
RE: Application for Further Review of Protest No. 5501-21-105519; Classification of Optical
Protection Switch Modules
Dear Center Director:
This letter concerns an Application for Further Review (AFR) of Protest No. 5501-21-
105519, filed on June 10, 2021, by Coriant North America, LLC (protestant). The protestant
submitted the AFR regarding the classification under the Harmonized Tariff Schedule of the
United States (HTSUS) of certain optical protection switch modules (OPSMs) by U.S. Customs
and Border Protection (CBP). In reaching the determination below, CBP has considered
information submitted with the Protest and AFR. The Protestant withdrew its request for an oral
discussion of the matter per 19 CFR § 177.4 by email on September 9, 2024.
FACTS:
The subject optical protection switch modules (OPSMs) are devices used in fiber optic
communication networks. Essentially, the OPSMs’ function is to protect a network’s
connectivity during service disruptions by automatically rerouting optical signals carrying pulses
of light. The OPSMs execute this function by diverting the paths optical signals may travel
across two fiber optic cables. Each OPSM consists of (1) a two-way splitter, (2) network tap
detectors, and (3) an optical protection switch. An OPSM is installed at each end of a fiber optic
cable connection: one on the transmitting end of the connection and another on the receiving end.
On the transmitting OPSM, an optical signal carrying pulses of light enters the OPSM’s two-way
splitter. The two-way splitter duplicates the pulses into two signals: a “working” optical signal
and a “protective” (i.e., a backup) optical signal. Both signals retain the same characteristics as
the original optical signal. After the two-way splitter duplicates the original signal, the working
and protective signals travel on separate fiber optic cables toward the receiving OPSM.
On the receiving OPSM, the working signal and the protective signal enter separate
network tap detectors. The network tap detectors analyze and compare the strength of each
signal. If the working signal’s strength is weaker than the protective signal’s strength, a
disruption to network connectivity may have occurred (e.g., outages, equipment repairs, and
other service interruptions). Upon sensing a possible disruption, the optical protection switch on
the OPSM activates. The optical protection switch disconnects the working signal’s
transmission path and connects the protective signal’s transmission path. Switching the
transmission paths maintains the fiber optic network’s connectivity: the protective signal can
continue traveling down the fiber optic cable and reach its destination despite the working
signal’s lower strength.
The protestant entered the subject merchandise on June 13, 2020, and June 26, 2020,
under subheading 8517.62.00, HTSUS. The protestant argues that the “OPS Modules do not
modify the bit stream nor interprets [sic] data from the bit stream,” and that “OPS Modules
merely transparently [sic] transmit the signal from input to output.”
ISSUE:
Whether the subject optical protection switch modules (OPSMs) constitute “Machines for
the reception, conversion, and transmission or regeneration of voice, images or other data,
including switching and routing apparatus” under subheading 8517.62, HTSUS.
LAW AND ANALYSIS:
A decision on classification and the rate and amount of duties chargeable is a protestable
matter under 19 U.S.C. § 1514(a)(2). The subject protest was timely filed on June 10, 2021,
within 180 days of liquidation, pursuant to 19 U.S.C § 1514(c)(3). Further review of Protest No.
5501-21-105519 is properly accorded to the protestant pursuant to 19 C.F.R. § 174.24(a) because
the decision against which the protest was filed “[i]s alleged to be inconsistent with a ruling of
the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the
same or substantially similar merchandise.” Specifically, the protestant points to New York
Ruling Letter (NY) N022695 as indication that the “[o]ptical protection switching devices and
similar devices (generally) were previously classified under [statistical reporting number]
8517.62.0050,” HTSUS Annotated (HTSUSA). 1
Classification under the HTSUS is determined in accordance with the General Rules of
Interpretation (“GRIs”) and, in the absence of special language or context which otherwise
requires, by the Additional U.S. Rules of Interpretation (“ARI”). General Rule of Interpretation
1 provides that the classification of goods shall be “determined according to the terms of the
headings 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, GRIs 2 through 6 may be applied in order.
1
See New York Ruling Letter (NY) N022695 (dated Feb. 28, 2008).
2
General Rule of Interpretation 6 provides that “the classification of goods in the
subheadings of a heading shall be determined according to the terms of those subheadings and
any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that
only subheadings at the same level are comparable.” For purposes of GRI 6, the relative section,
chapter and subchapter notes also apply, unless the context otherwise requires.
The following heading and subheadings of the HTSUS are under consideration:
8517 Telephone sets, including smartphones and other telephones for
cellular networks or for other wireless networks; other apparatus
for the transmission or reception of voice, images or other data,
including apparatus for communication in a wired or wireless
network (such as a local or wide area network), other than
transmission or reception apparatus of heading 8443, 8525, 8527
or 8528; parts thereof:
Other apparatus for transmission or reception of voice,
images or other data, including apparatus for
communication in a wired or wireless network (such as a
local or wide area network):
8517.62 Machines for the reception, conversion and
transmission or regeneration of voice, images or
other data, including switching and routing
apparatus:
*****
8517.69 Other.
Per GRIs 1 and 6, the terms of the heading and subheadings under consideration will
govern the disposition of the subject merchandise. There is no dispute that the subject OPSMs
constitute apparatuses “for the transmission or reception of voice, images or other data,” in
accordance with the terms of heading 8517, HTSUS. The OPSMs are clearly designed to
facilitate and preserve the connectivity of a fiber optic network, along which voice, images, and
other data are transmitted and received. As such, this matter turns on whether the subject
merchandise meets the terms of subheading 8517.62, HTSUS.
The plain terms of subheading 8517.62, HTSUS, indicate that a machine classifiable
therein must be used for certain functions, namely “reception, conversion and transmission or
regeneration.” The term “and” typically joins a conjunctive list and connects ideas together,
while the term “or” typically joins a disjunctive list and presents nonexclusive alternatives. As
such, subheading 8517.62 requires that a covered machine be used for at least three functions:
(1) “reception”; (2) “conversion”; and (3) “transmission,” “regeneration,” or both. Further, the
object of these functions must be “voice, images or other data.” The term “including” in this
subheading is presumptively nonexclusive and simply provides an illustrative application – here,
a “switching and routing apparatus,” but potentially other undescribed machines.
3
Particularly as it relates to the subheadings under consideration, our interpretation of the
list of required functions accords with the structure of the legal text, prior CBP decisions, 2 and a
longstanding presumption against statutory surplusage. Asserting that the conjunct “and” under
subheading 8517.62, HTSUS, joins a disjunctive list renders the competing “other” provision
under subheading 8517.69, HTSUS, superfluous. If subheading 8517.62, HTSUS, merely
requires a machine to be used for one function – receive, convert, or transmit or regenerate –
then subheading 8517.62, HTSUS, would include all “other” merchandise (besides “[b]ase
stations” under subheading 8517.61, HTSUS) that could possibly be described as “Other
apparatus for transmission or reception of voice, images or other data, including apparatus for
communication in a wired or wireless network (such as a local or wide area network).” Thus, we
reason that only machines which receive, convert, and transmit or regenerate voice, images, or
other data can be classified under subheading 8517.62, HTSUS.
Turning to the subject merchandise, GRIs 1 and 6 require that the OPSMs must be used
for receiving, converting, and transmitting or regenerating voice, images, or other data to be
classifiable under subheading 8517.62, HTSUS. But because the subject OPSMs can only
perform two of these functions – (1) “reception” and (2) “transmission,” but not “conversion” –
the OPSMs cannot be classified under subheading 8517.62, HTSUS. The protestant’s
submissions clearly demonstrate that the OPSMs can transmit and receive an optical signal. As
described above, two OPSMs are installed at each end of a fiber optic connection: one on the
transmitting end of the connection that transmits the working signal and protective signal, and
another on the receiving end that receives both signals and compares their signal strength. One
OPSM transmits; the other receives. But nothing in the rerouting process demonstrates the
“conversion” of voice, images, or other data.
The “conversion” of an optical signal must involve “[t]he action of turning, or process of
being turned, into or to something else,” including a “change of form or properties” or
“alteration.” 3 But the OPSMs cannot fundamentally change an optical signal’s character, form,
or properties. As discussed above, the two-way splitters in the OPSMs merely duplicate the
original optical signal into two identical signals. The working signal and the protective signal
share the same characteristics as the original optical signal. Though they travel on separate fiber
optic cables, these pulses of light are inherently the same as the original source. The mere
duplication of these signals cannot constitute “conversion” if their properties are identical.
Indeed, as the protestant states, the “[OPSMs] do not modify the bit stream.” Rather, according
to the protestant, the OPSMs “merely transparently [sic] transmit the signal from input to
output.” The mere transmission “from input to output,” and the lack of modification to the bit
stream, further emphasize the absence of a change in character, form, or function. Because the
OPSMs cannot convert an optical signal, the OPSMs fail to perform all required functions
provided under subheading 8517.62, HTSUS, and cannot be classified under that subheading.
2
See, e.g., NY N271761 (Jan. 29, 2016) (finding that wireless switches that could only transmit data were not
classifiable under subheading 8517.62.0050, HTSUS, by application of GRI 1).
3
Conversion, n. meanings, etymology and more, OXFORD ENG. DICTIONARY,
https://www.oed.com/dictionary/conversion_n?tab=meaning_and_use#8281189 (sense II.11.a) (last visited Aug. 27,
2024).
4
Instead, the OPSMs fit squarely within the ambit of subheading 8517.69, HTSUS, the
basket provision that covers “other” articles that do not meet the terms of the superior
subheadings. An optical signal is fundamentally designed to carry information in a fiber optic
communication network, and we previously described how the OPSMs can transmit and receive
an optical signal. Given these facts, the OPSMs constitute an apparatus that can transmit or
receive voice, images, or other data. Because the OPSMs cannot be classified under subheading
8517.62, HTSUS, and because they can transmit and receive voice, images, or other data as part
of a fiber optic connection, the OPSMs are properly classified under subheading 8517.69,
HTSUS.
The protestant argues that CBP should classify the subject merchandise under subheading
8517.62, HTSUS, in keeping with its treatment of the “managed optical services switch” at issue
in NY N022265. The facts of that decision were described as follows:
It is telecommunications equipment that is used to direct telephone and data traffic.
The descriptive literature submitted for the Ciena CN 4300 describes this item as
an operator class multiservice transport and switching platform that integrates
aggregation, cross-connect functions and WDM capabilities to enable a diverse
range of metro service offerings, including Ethernet, storage and SONET/SDH
transport.
Ciena’s CN 4300 Managed Optical Services Switch has from 8 to 64 service ports
at 850 nm, 1310 nm and CWDM wavelengths using Small Form factor Pluggable
(SFP) optics and weighs 65 lbs (29Kg) fully loaded. A central non-blocking
protocol independent switch matrix enables dynamic service provisioning, flexible
service topologies, and automatic switching on a per-service granularity. Optional
redundancy on line cards and common elements guarantees carrier-class service
availability with sub-millisecond automatic protection switching.
Although the managed optical services switch of NY N022265 was capable of “automatic
protection switching,” the device also contained several ports to “direct telephone and data
traffic” and exhibited networking capabilities beyond the mere transmission “from input to
output” as seen in the subject OPSMs. The duplication of an optical signal here does not “direct”
that signal to a specific address or destination in the same manner as the managed optical
services switch there.
HOLDING:
By application of GRIs 1 and 6, the optical protection switch modules (OPSMs) are
properly classified under subheading 8517.69.00, HTSUS, which provides for: “Telephone sets,
including smartphones and other telephones for cellular networks or for other wireless networks;
other apparatus for the transmission or reception of voice, images or other data, including
apparatus for communication in a wired or wireless network (such as a local or wide area
network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528;
parts thereof: Other apparatus for transmission or reception of voice, images or other data,
including apparatus for communication in a wired or wireless network (such as a local or wide
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area network): Other.” The column one general rate of duty for merchandise classified under
this subheading is free.
Pursuant to U.S. Notes 20(e) and 20(f) to Subchapter III, Chapter 99, HTSUS, products
of China classified under subheading 8517.69.00, HTSUS, unless specifically excluded, are
subject to an additional 25 percent ad valorem rate of duty. At the time of importation, an
importer must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading
8517.69.00, HTSUS, noted above, for products of China.
Duty rates are provided for your convenience and are subject to change. The text of the
most recent HTSUS and the accompanying duty rates are provided on the Internet at
https://hts.usitc.gov/.
You are instructed to DENY the protest in full.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings,
will make the decision available to CBP personnel, and to the public on the Customs Rulings
Online Search System (“CROSS”) at https:/rulings.cbp.gov/, which can be found on the CBP
website at https://www.cbp.gov/ and other methods of public distribution.
Sincerely,
for Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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