Adc Telecommunications, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ADC TELECOMMUNICATIONS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1316
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00400-RKM, Senior Judge R. Kenton
Musgrave.
______________________
Decided: February 19, 2019
______________________
MICHAEL EDWARD ROLL, Pisani & Roll LLP, Los Ange-
les, CA, argued for plaintiff-appellant. Also represented by
BRETT HARRIS, ROBERT J. PISANI, Washington, DC.
GUY EDDON, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, New York, NY,
argued for defendant-appellee. Also represented by AMY
RUBIN; JEANNE DAVIDSON, JOSEPH H. HUNT, Washington,
DC; BETH C. BROTMAN, Office of the Assistant Chief Coun-
sel, United States Bureau of Customs and Border Protec-
tion, United States Department of Homeland Security,
New York, NY.
2 ADC TELECOMMS., INC. v. UNITED STATES
______________________
Before PROST, Chief Judge, DYK and WALLACH, Circuit
Judges.
WALLACH, Circuit Judge.
Appellant ADC Telecommunications, Inc. (“ADC”) sued
Appellee United States (“the Government”) in the U.S.
Court of International Trade (“CIT”), challenging U.S. Cus-
toms and Border Protection’s (“Customs”) classification of
imported Value Added Modules (“VAM”) consisting of fiber
optic telecommunications network equipment under Har-
monized Tariff Schedule of the United States (“HTSUS”) 1
Subheading 9013.80.90, which bears a duty rate of 4.5% ad
valorem. ADC and the Government filed cross-motions for
summary judgment, with ADC arguing that the subject
merchandise should be classified under HTSUS Subhead-
ing 8517.62.00, which bears a duty-free rate. The CIT de-
nied ADC’s Cross-Motion, and granted the Government’s
Cross-Motion, holding that Customs properly classified the
subject merchandise under HTSUS Subheading
9013.80.90. ADC Telecomms., Inc. v. United States, No. 13-
00400, 2017 WL 4708021, at *9 (Ct. Int’l Trade Oct. 18,
2017); see J.A. 12 (Judgment).
ADC appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(5) (2012). We affirm.
BACKGROUND
The subject merchandise “consists of fiber optic tele-
communications network equipment” and “is included in
1 “All citations to the HTSUS refer to the 20[12] ver-
sion, as determined by the date of importation of the mer-
chandise.” LeMans Corp. v. United States, 660 F.3d 1311,
1314 n.2 (Fed. Cir. 2011); see J.A. 1057–58 (providing that
the subject merchandise was imported on June 15, 2012).
ADC TELECOMMS., INC. v. UNITED STATES 3
[ADC’s VAMs] product line.” ADC, 2017 WL 4708021, at
*2 (citations omitted). 2 “Fiber optic telecommunications
networks operate by pulses of light in the infrared wave-
length range, which transmit voice, sound, images, video,
e-mail messages, and other information from one point in
the network to another.” Id. (citations omitted). “The
wavelength of the light typically used to transmit data in a
fiber optic telecommunications network is approximately
1260 nanometers to 1650 nanometers; whereas human
eyes can see light only in the wavelength range from about
400 nanometers to 700 nanometers,” meaning “humans
would not be able to see the light that is used” in the subject
merchandise. Id. (citations omitted).
The VAM product line “is intended to ease installation
of the articles into [ADC]’s telecommunications network
operator customers’ fiber optic networks” by including
“connectors on the ends of the fibers, eliminating the need
for telecommunications network providers to splice the fi-
bers into their networks,” and protective “housing” or “jack-
eting over the actual fiber itself” to prevent damage to the
optical fibers “either during the installation process or from
the environment during use.” Id. (citations omitted).
There are three categories of products in the VAM product
line: (1) splitter modules, which “take individual signals
from a single optical fiber and divide them, enabling that
single signal to reach multiple telecommunication network
subscribers,” (2) monitor modules, which “allow access to
signaling and control functions of a communications net-
work in order to evaluate performance and detect prob-
lems,” and (3) wavelength division multiplexer (“WDM”)
modules, which “permit infrared signals of two different
wavelengths to travel simultaneously on a single fiber,
2 Because the parties do not dispute the material
facts, we cite to the facts as recited by the CIT for ease of
reference. See ADC, 2017 WL 4708021, at *2–3.
4 ADC TELECOMMS., INC. v. UNITED STATES
thereby increasing the capacity.” Id. (citations and foot-
notes omitted). The subject merchandise “is used primarily
or exclusively for purposes of data transmission in a tele-
communications network . . . exclusively using light in the
infrared wavelength range,” and the merchandise does not
“contain any electronic components or electrical circuit
boards.” Id. at *3 (citations omitted).
The CIT determined that HTSUS Heading 9013, which
covers “other optical appliances and instruments, not spec-
ified or included elsewhere in this chapter,” is “an apt de-
scription of [ADC’s] VAMs . . . because such appliances and
instruments, used in conjunction with the ‘optical fibers’ of
[HTSUS H]eading 9001 . . . are plainly covered by [C]hap-
ter 90.” Id. at *6 (internal quotation marks omitted). The
CIT explained that HTSUS Heading 8517, which covers
“other apparatus for the transmission or reception of voice,
images or other data, including apparatus for communica-
tion in a wired or wireless network (such as a local or wide
area network),” “would appear apt insofar as it describes
the sole purpose of the VAMs.” Id. at *5 (internal quotation
marks omitted). However, the CIT concluded that the sub-
ject merchandise “are prima facie classifiable” in HTSUS
Heading 9013, and because they are included in Chapter
90, they are “therefore excluded from [C]hapter 85 pursu-
ant to [Section XVI] Note 1(m).” Id. at *6 (italics omitted).
DISCUSSION
I. Standard of Review
We review the CIT’s decision to grant summary judg-
ment de novo, applying the same standard used by the CIT
to assess Customs’ classification. See Otter Prods., LLC v.
United States, 834 F.3d 1369, 1374–75 (Fed. Cir. 2016).
“Although we review the decision of the CIT de novo, we
give great weight to the informed opinion of the CIT and it
is nearly always the starting point of our analysis.”
Schlumberger Tech. Corp. v. United States, 845 F.3d 1158,
1162 (Fed. Cir. 2017) (internal quotation marks,
ADC TELECOMMS., INC. v. UNITED STATES 5
alterations, and citation omitted). The CIT “shall grant
summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” USCIT R. 56(a).
The classification of merchandise involves a two-step
inquiry. See LeMans, 660 F.3d at 1315. First, we ascertain
the meaning of the terms within the relevant tariff provi-
sion, which is a question of law, and, second, we determine
whether the subject merchandise fits within those terms,
which is a question of fact. See Sigma-Tau HealthSci., Inc.
v. United States, 838 F.3d 1272, 1276 (Fed. Cir. 2016).
Where, as here, no genuine dispute exists as to the nature
of the subject merchandise, the two-step inquiry “collapses
into a question of law we review de novo.” LeMans, 660
F.3d at 1315 (citation omitted).
II. The CIT Properly Granted Summary Judgment for the
Government
A. Legal Framework
The HTSUS governs the classification of merchandise
imported into the United States. See Wilton Indus., Inc. v.
United States, 741 F.3d 1263, 1266 (Fed. Cir. 2013). The
HTSUS “shall be considered . . . statutory provisions of law
for all purposes.” 19 U.S.C. § 3004(c)(1) (2012); see
Chemtall, Inc. v. United States, 878 F.3d 1012, 1026 (Fed.
Cir. 2017) (explaining that “the tenth-digit statistical suf-
fixes . . . are not statutory,” as those suffixes are not incor-
porated in the HTSUS’s legal text).
“The HTSUS scheme is organized by headings, each of
which has one or more subheadings; the headings set forth
general categories of merchandise, and the subheadings
provide a more particularized segregation of the goods
within each category.” Wilton Indus., 741 F.3d at 1266.
“The first four digits of an HTSUS provision constitute the
heading, whereas the remaining digits reflect subhead-
ings.” Schlumberger, 845 F.3d at 1163 n.4. “[T]he
6 ADC TELECOMMS., INC. v. UNITED STATES
headings and subheadings . . . are enumerated in chapters
1 through 99 of the HTSUS (each of which has its own sec-
tion and chapter notes) . . . .” R.T. Foods, Inc. v. United
States, 757 F.3d 1349, 1353 (Fed. Cir. 2014). The HTSUS
“also contains the ‘General Notes,’ the ‘General Rules of In-
terpretation’ (‘GRI’), the ‘Additional [U.S.] Rules of Inter-
pretation’ (‘ARI’),[3] and various appendices for particular
categories of goods.” Id. (footnote omitted).
The GRI and the ARI govern the classification of goods
within the HTSUS. See Otter Prods., 834 F.3d at 1375.
“The GRI apply in numerical order, meaning that subse-
quent rules are inapplicable if a preceding rule provides
proper classification.” Schlumberger, 845 F.3d at 1163.
GRI 1 provides, in relevant part, that “classification shall
be determined according to the terms of the headings and
any relative section or chapter notes.” GRI 1 (emphasis
added). “Under GRI 1, [we] first construe[] the language of
the heading, and any section or chapter notes in question,
to determine whether the product at issue is classifiable
under the heading.” Schlumberger, 845 F.3d at 1163 (in-
ternal quotation marks and citation omitted). “[T]he
3 The ARI contain, inter alia, specific rules for inter-
preting use and textile provisions in the HTSUS. See ARI
1(a)–(d). “Because th[is] appeal involves eo nomine provi-
sions,” as discussed below, “we find the ARI inapplicable.”
Schlumberger, 845 F.3d at 1163 n.5; see infra Section II.B.
“An eo nomine classification provision is one which de-
scribes a commodity by a specific name,” rather than by
use, Clarendon Mktg., Inc. v. United States, 144 F.3d 1464,
1467 (Fed. Cir. 1998), and, “[a]bsent limitation or contrary
legislative intent, an eo nomine provision includes all forms
of the named article, even improved forms,” CamelBak
Prods., LLC v. United States, 649 F.3d 1361, 1364–65 (Fed.
Cir. 2011) (internal quotation marks and brackets omit-
ted).
ADC TELECOMMS., INC. v. UNITED STATES 7
possible headings are to be evaluated without reference to
their subheadings, which cannot be used to expand the
scope of their respective headings.” R.T. Foods, 757 F.3d
at 1353 (citations omitted). “Absent contrary legislative in-
tent, HTSUS terms are to be construed according to their
common and commercial meanings, which are presumed to
be the same.” Well Luck Co. v. United States, 887 F.3d
1106, 1111 (Fed. Cir. 2018) (internal quotation marks and
citation omitted). “To discern the common meaning of a
tariff term, we may consult dictionaries, scientific authori-
ties, and other reliable information sources.” Kahrs Int’l,
Inc. v. United States, 713 F.3d 640, 644 (Fed. Cir. 2013) (ci-
tation omitted).
“After consulting the headings and relevant section or
chapter notes” consistent with GRI 1, we may consider the
relevant Explanatory Notes (“EN”). Fuji Am. Corp. v.
United States, 519 F.3d 1355, 1357 (Fed. Cir. 2008). “The
[ENs] provide persuasive guidance and are generally indic-
ative of the proper interpretation, though they do not con-
stitute binding authority.” Chemtall, 878 F.3d at 1019
(internal quotation marks and citation omitted).
Once we determine the appropriate heading, we apply
GRI 6 to determine the appropriate subheading. See Or-
lando Food Corp. v. United States, 140 F.3d 1437, 1442
(Fed. Cir. 1998). GRI 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 re-
lated subheading notes and, mutatis mutandis, to the
above [GRIs], on the understanding that only subheadings
at the same level are comparable.”
B. HTSUS Heading 9013 Covers the Subject Merchandise
ADC argues the subject merchandise is “not accurately
described as ‘optical appliances’ or ‘optical instruments’”
under HTSUS Heading 9013. Appellant’s Br. 19 (capitali-
zation modified). According to ADC, “[a]lthough [the
VAMs] act on or interact with light, as apparatus used
8 ADC TELECOMMS., INC. v. UNITED STATES
exclusively for the transmission of data through a fiber op-
tic telecommunications network[,] these items transmit
light solely in the infrared” and thus are not classifiable
under HTSUS Heading 9013, as they “cannot permit or en-
hance human vision[,] because the optical output of these
items can never be seen by humans during normal opera-
tion.” Id. at 22 (internal quotation marks omitted). We
disagree.
“We first must assess whether the subject [h]eading[]
constitute[s an] eo nomine or use provision[] because differ-
ent rules and analysis will apply depending upon the head-
ing type.” Schlumberger, 845 F.3d at 1164 (first citing
Kahrs, 713 F.3d at 645–46 (defining eo nomine provision);
then citing Aromont USA, Inc. v. United States, 671 F.3d
1310, 1312–16 (Fed. Cir. 2012) (defining principal use pro-
vision)). HTSUS Heading 9013 recites “[l]iquid crystal de-
vices not constituting articles provided for more specifically
in other headings; lasers, other than laser diodes; other op-
tical appliances and instruments, not specified or included
elsewhere in this chapter; parts and accessories thereof.”
HTSUS Heading 9013 (emphasis added). It “is unquestion-
ably eo nomine because it describes the articles it covers by
name,” and, therefore, “our analysis starts with [its]
terms.” Schlumberger, 845 F.3d at 1164.
We start with the language of the heading, looking to
the relevant section and chapter notes. See id. at 1163; see
also GRI 1. Additional U.S. Note 3 to Chapter 90 explains
that “the terms ‘optical appliances’ and ‘optical instru-
ments’ 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 incor-
porated optical element or elements are solely for viewing
a scale or for some other subsidiary purpose.” Additional
U.S. Note 3, Chapter 90, HTSUS (emphases added). In
other words, for the subject merchandise to fall within
HTSUS Heading 9013’s definition of optical appliances or
instruments, it must (1) incorporate one or more optical
ADC TELECOMMS., INC. v. UNITED STATES 9
elements and (2) the optical element cannot merely serve a
subsidiary purpose.
Because the relevant section and chapter notes do not
further define the terms “optical appliances” or “optical in-
struments,” we turn to the common and commercial mean-
ing of the statutory terms. See Well Luck, 887 F.3d at 1113
n.6 (employing dictionary definitions from the time of the
HTSUS’s enactment). A technical dictionary defines “opti-
cal instrument” as “[a]n optical system which acts on light
in some desired way, such as to form a real or virtual im-
age, to form an optical spectrum, or to produce light with a
specified polarization or wavelength.” Optical Instrument,
McGraw-Hill Dictionary of Scientific and Technical Terms
(4th ed. 1989) (emphasis added). Moreover, the same tech-
nical dictionary defines the term “optical element,” which
appears in Additional U.S. Note 3 to Chapter 90 of the
HTSUS to delimit optical appliances and optical instru-
ments, as “[a] part of an optical instrument which acts upon
the light passing through the instrument, such as a lens,
prism, or mirror.” Optical Element, McGraw-Hill Diction-
ary of Scientific and Technical Terms (4th ed. 1989) (em-
phasis added).
Non-technical dictionaries define the individual term
“optical” as “[o]f or pertaining to sight in relation to the
physical action of light upon the eye,” “belonging to optics,”
and “[u]sed with reference to electromagnetic radiation
other than light . . . relating to the transmission of such ra-
diation.” Optical, The Oxford English Dictionary (2d ed.
1989) (emphasis added); see Optical, Webster’s Third New
International Dictionary (1986) (defining “optical” as
(1) “relating to the science of optics,” (2) “designed or con-
structed to aid the vision,” and (3) “acting by means of light
or in accord with the principles of optics”). These diction-
aries, in turn, define “optics” as “a science that deals with
light, its genesis and propagation, the effects that it under-
goes and produces, and other phenomena closely associated
with it.” Optics, Webster’s Third New International
10 ADC TELECOMMS., INC. v. UNITED STATES
Dictionary (1986); see Optics, The Oxford English Diction-
ary (2d ed. 1989) (defining “optics” as “[t]he science of sight,
or the medium of sight, i.e. light; that branch of physics
which deals with the properties and phenomena of light”).
Based on the relevant chapter note and dictionary defini-
tions, HTSUS Heading 9013 covers appliances and instru-
ments that act on light, including (but not limited to)
visible light.
These definitions accord with precedent. In United
States v. Ataka America, Inc., the U.S. Court of Customs
and Patent Appeals (“CCPA”) articulated criteria (“the
Ataka criteria”) used for determining whether certain gas-
trointestinal fiberscopes were classifiable as optical instru-
ments under the HTSUS’s predecessor. 550 F.2d 33, 37–
38 (CCPA 1977). In Celestaire, Inc. v. United States (Ce-
lestaire II), we determined that an imported sextant was
an optical instrument under HTSUS Subheading
9014.80.10 through application of the Ataka criteria, which
ask: (1) “whether the device acts on or interacts with light,”
(2) “whether the device permits or enhances human vision
through the use of one or more optical elements,” and
(3) “whether the device uses the optical properties of the
device in something more than a ‘subsidiary’ capacity.” 120
F.3d 1232, 1233 (Fed. Cir. 1997) (citation omitted); see id.
at 1232. The Ataka court made explicit that “[n]one of the
foregoing criteria is determinative in every case, but they
are useful in determining the statutory meaning of optical
instrument(s),” 550 F.2d at 37 (internal quotation marks
omitted), thereby acknowledging that the Ataka criteria
provide factors to be considered in such an analysis, see id.
(explaining “the term optical instrument(s) encompasses
devices” that satisfy the criteria listed above, rather than
is limited to such devices (emphasis added)). Thus, if the
device permits or enhances human vision, that is a strong
indicator that it would be classified as an “optical instru-
ment” or “optical appliance.” The absence of such capabil-
ities, however, does not preclude finding that a particular
ADC TELECOMMS., INC. v. UNITED STATES 11
device, which otherwise satisfies the remaining criteria, is
an “optical instrument.” See id.; see also Celestaire II, 120
F.3d at 1233 (referring to the three factors described in
Ataka as “criteria” rather than elements).
The origin test for “optical instruments” arose from the
Summary of Tariff Information, which was issued by the
U.S. Tariff Commission and states:
Optical instruments are primarily used to aid or
supplement human vision; they also include appa-
ratus which depends for its operation on the pas-
sage of light through prismatic or lenticular optical
glass. Lenses and prisms are the fundamental
parts of optical instruments.
Summary of Tariff Information, 552 (1929) (emphases
added); see Engis Equip. Co. v. United States, 294 F. Supp.
964, 967 (Cust. Ct. 1969), superseded by statute as recog-
nized in Celestaire v. United States (Celestaire I), 928 F.
Supp. 1174, 1175 (Ct. Int’l Trade 1996). 4 On its face, this
indicates that optical instruments typically aid or supple-
ment human vision, but a device that does not have such
capabilities may still be classified as an optical instrument,
e.g., “glass eyes for taxidermists.” Summary of Tariff In-
formation at 553. This was recognized by the CCPA as
4 The 1929 Summary of Tariff Information, which
was published in volumes, “is a comprehensive summary of
available tariff information” and “compiled by the [U.S.]
Tariff Commission for the use of the Committee on Ways
and Means [of the U.S. House of Representatives], in con-
nection with an examination of the Tariff Act of 1922, for
the purpose of making any readjustments in said act where
found necessary.” Foreword to Summary of Tariff Infor-
mation at iii. “Each summary contains descriptive and eco-
nomic data on the commodities or group of commodities
provided for in the Tariff Act of 1922 . . . .” Id.12 ADC TELECOMMS., INC. v. UNITED STATES
early as 1941, where it interpreted the term “[o]ptical in-
struments” in a predecessor to the HTSUS as having “to do
with light or vision, or both.” United States v. Am. Mach.
& Metals, 29 C.C.P.A. 137, 145 (1941) (emphasis added).
Our holding that satisfying each of the Ataka criteria
is not required does not mean that importers will lack nec-
essary certainty. See Jarvis Clark Co. v. United States, 733
F.2d 873, 876 (Fed. Cir. 1984) (“The desire for uniform and
consistent interpretation and application of the customs
law is central to customs policy.” (internal quotation marks
and citation omitted)). We acknowledge that several head-
ings and subheadings throughout the HTSUS use the
terms “optical appliances” or “optical instruments,” such
that the determination of which Ataka criteria are the most
relevant may depend on, inter alia, the statutory context.
However, for classification within Chapter 90, the consid-
eration of the Ataka criteria must accord with Additional
U.S. Note 3, which is binding and requires only that optical
appliances and instruments “incorporate one or more opti-
cal elements” in a non-subsidiary capacity. Additional U.S.
Note 3, Chapter 90, HTSUS; see Schlumberger, 845 F.3d at
1163 (requiring courts to consider any relevant chapter
notes under GRI 1). 5
Here, ADC’s subject merchandise falls within HTSUS
Heading 9013’s definition of optical appliances or instru-
ments. The subject merchandise acts by means of light,
given that the splitter modules, monitor modules, and
WDM modules all seek to “ease installation” of the modules
into ADC’s “telecommunications network operator custom-
ers’ fiber optic networks,” such that the networks operate
through “pulses of light in the infrared wavelength range”
5 While we may now turn to the relevant ENs, see
Fuji, 519 F.3d at 1357, we have considered them and con-
clude that there are no ENs that would alter our interpre-
tation of HTSUS Heading 9013.
ADC TELECOMMS., INC. v. UNITED STATES 13
to transmit voice and other data. ADC, 2017 WL 4708021,
at *2 (emphasis added) (citations omitted). Although the
fiber optic networks employ a wavelength range of “approx-
imately 1260 nanometers to 1650 nanometers,” i.e., not
within the range of visible light, id. (citations omitted), it
is clear that the subject merchandise employs optical ele-
ments, see, e.g., J.A. 1057 (explaining that the WDM mod-
ules employ “lenses, planar lightwave circuits, fused
biconic tapers[,] or thin film filters” (emphasis added)); see
also Additional U.S. Note 3, Chapter 90, HTSUS (explain-
ing that an optical appliance or instrument contains “one
or more optical elements”); Optical Element, McGraw-Hill
Dictionary of Scientific and Technical Terms (4th ed. 1989)
(defining an optical element as “[a] part of an optical in-
strument which acts upon the light passing through the in-
strument, such as a lens, prism, or mirror” (emphasis
added)). These optical elements are not subsidiary to an-
other purpose; instead, the subject merchandise “is used
primarily or exclusively for purposes of data transmission
in a telecommunications network . . . exclusively using
light in the infrared wavelength range.” ADC, 2017 WL
4708021, at *3 (emphases added) (citations omitted). Ac-
cordingly, the subject merchandise is classifiable under
HTSUS Heading 9013.
ADC’s counterarguments fail. First, ADC contends the
subject merchandise should be classified under Chapter 85,
which contains HTSUS Heading 8517, rather than Chap-
ter 90, which contains HTSUS Heading 9013, because
other headings in these respective chapters support finding
a difference between types of fiber optic cables classifiable
in Chapter 85 versus those in Chapter 90. See Appellant’s
Br. 30–31. According to ADC, “[H]eading 9001 by its very
own terms only covers ‘optical fiber cables other than those
of [H]eading 8544,’” and Heading 8544 covers fiber optic
cables primarily used for transmission of voice and other
data. Id. at 31. However, the distinction between HTSUS
Headings 8544 and 9001 is not based on the use of the
14 ADC TELECOMMS., INC. v. UNITED STATES
optical fibers, and is instead based on the fibers’ physical
characteristics. Specifically, HTSUS Heading 8544 in-
cludes “optical fiber cables, made up of individually
sheathed fibers, whether or not assembled with electric
conductors or fitted with connectors,” Heading 8544,
HTSUS (emphasis added), whereas the ENs explain that
the cables covered by HTSUS Heading 9001 “consist of a
sheath containing one or more optical fibre bundles, the fi-
bres of which are not individually sheathed,” EN(A),
HTSUS Heading 9001 (emphasis added); see Customs Rul-
ing HQ H098958 (Sept. 27, 2017), 2017 WL 5696486, at *6
(“[T]he determining factor in the classification of optical fi-
ber cables or bundles in [H]eading 8544 or [H]eading 9001
is the physical characteristics of the article; their use is sec-
ondary . . . . [The ENs to these headings do not] limit[] the
use of these products exclusively to telecommunications for
cables of [H]eading 8544 or optical apparatus for products
of [H]eading 9001.”). Moreover, certain ENs contradict
ADC’s alleged distinction between Chapters 85 and 90 be-
cause the optical appliances and instruments within Chap-
ter 90 are not strictly limited to those acting on visible
light. For example, the ENs to HTSUS Heading 9001 state
that “[a]n optical element does more than merely allow
light (visible, ultraviolet or infrared) to pass through it.”
EN(D), Heading 9001 (emphasis added). Similarly, the EN
to HTSUS Subheading 9031.49 explains that “[t]his [S]ub-
heading covers not only instruments and appliances which
provide a direct aid or enhancement to human vision, but
also other instruments and apparatus which function
through the use of optical elements or processes.” EN, Sub-
heading 9031.49. Therefore, the subject merchandise is not
excluded from Chapter 90.
Second, ADC argues “[m]ore than [fifty] years of cus-
toms jurisprudence concerning the tariff classification of
optical instruments . . . firmly establishes that such arti-
cles must ‘permit or enhance human vision.’” Appellant’s
Br. 36. To support this conclusion, ADC cites, inter alia,
ADC TELECOMMS., INC. v. UNITED STATES 15
our decision in Celestaire II. See id. at 21–26. 6 For the
reasons discussed above, Celestaire II does not support
ADC’s conclusion because we merely applied the Ataka cri-
teria in that case to determine whether a device was an
optical instrument. 120 F.3d at 1233. As has long been
recognized, these criteria “are neither controlling nor ex-
haustive.” Celestaire I, 928 F. Supp. at 1180 (internal quo-
tation marks omitted); see Ataka, 550 F.2d at 37
(explaining that “[n]one of the . . . criteria is determinative
in every case”). Instead, “it is the statute . . . which gov-
erns the classification of an article as an optical instru-
ment.” Celestaire I, 928 F. Supp. at 1179 (quoting Ataka,
550 F.2d at 36 n.4). We, therefore, conclude that HTSUS
Heading 9013 aptly covers the subject merchandise.
C. The Subject Merchandise Does Not Fall Within HTSUS
Heading 8517
ADC argues “the splitter modules, monitor modules[,]
and [WDM] modules at issue in this case fall squarely
within the terms of [H]eading 8517.” Appellant’s Br. 44.
We disagree.
We start with the language of the heading, looking to
the relevant section and chapter notes. See Schlumberger,
845 F.3d at 1163; see also GRI 1. HTSUS Heading 8517
covers “[t]elephone sets, including telephones for cellular
networks or for other wireless networks” and “other appa-
ratus 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 net-
work), other than transmission or reception apparatus of
[H]eading 8443, 8525, 8527, or 8528; parts thereof.” Chap-
ter 85 of the HTSUS is contained in Section XVI, and Note
6 To the extent that ADC’s argument also relies on
CIT cases, see Appellant’s Br. 35, the CIT cases are not
binding precedent.
16 ADC TELECOMMS., INC. v. UNITED STATES
1 to Section XVI provides that “[t]his section does not
cover . . . (m) [a]rticles of [C]hapter 90.” Therefore, be-
cause the subject merchandise is classifiable in HTSUS
Heading 9013, which is found in Chapter 90, see supra Sec-
tion II.B, it is not classifiable in Section XVI, in which
HTSUS Heading 8517 is found.
D. GRI 6 Dictates that the Subject Merchandise Is
Properly Classified Under HTSUS Subheading 9013.80.90
Having determined that the subject merchandise is
properly classified under HTSUS Heading 9013, we apply
GRI 6, which is employed in a classification analysis to de-
termine the appropriate subheading. See GRI 6 (applying
to “the classification of goods in the subheadings” and ex-
plaining that “only subheadings at the same level are com-
parable”); see also Orlando Food, 140 F.3d at 1442
(conducting a GRI 6 analysis to determine the appropriate
subheading). At the six-digit subheading level, the subject
merchandise does not fall within the terms of HTSUS Sub-
heading 9013.10, which covers “[t]elescopic sights for fit-
ting to arms; periscopes; telescopes designed to form parts
of machines, appliances, instruments or apparatus of this
[C]hapter or [S]ection XVI,” or HTSUS Subheading
9013.20, which covers “[l]asers, other than laser diodes.”
Instead, the subject merchandise is aptly described by
HTSUS Subheading 9013.80, which covers “[o]ther devices,
appliances and instruments.” Because the subject mer-
chandise does not fall within any of the eight-digit level
subheadings preceding HTSUS Subheading 9013.80.90, it
is properly classified under HTSUS Subheading
9013.80.90, which covers “[o]ther.” See Rollerblade, Inc. v.
United States, 282 F.3d 1349, 1354 (Fed. Cir. 2002) (hold-
ing that, where merchandise is properly classified under a
particular heading, but does not fall within a specific sub-
heading, it is properly classified under the relevant head-
ing’s “basket” or “catch-all” provision); see also Oral Arg. at
2:15–31, http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2018-1316.mp3 (Q: “If we determine that
ADC TELECOMMS., INC. v. UNITED STATES 17
[Heading] 9013 covers the subject merchandise, would you
agree that 9013.80.90 is the appropriate Subheading?” A:
“Yes, I would agree that that would be the outcome.”). In-
deed, the parties do not contest the CIT’s conclusion that,
if the subject merchandise is properly classified under
HTSUS Heading 9013, then it falls within HTSUS Sub-
heading 9013.80.90. See ADC, 2017 WL 4708021, at *9.
See generally Appellant’s Br.; Appellee’s Br. Accordingly,
we conclude that HTSUS Subheading 9013.80.90 is the ap-
propriate classification for the subject merchandise.
CONCLUSION
We have considered ADC’s remaining arguments and
find them unpersuasive. Accordingly, the Judgment of the
U.S. Court of International Trade is
AFFIRMED