from the United States Court of International Trade in No.
1:13-cv-00400-RKM, Senior Judge R. Kenton Musgrave.
Michael Edward Roll, Pisani & Roll LLP, Los Angeles, CA,
argued for plaintiff-appellant. Also represented by Brett
Harris, Robert J. Pisani, Washington, DC.
Eddon, Commercial Litigation Branch, Civil Division, 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 Counsel, United States Bureau
of Customs and Border Protection, United States Department of
Homeland Security, New York, NY.
Prost, Chief Judge, Dyk and Wallach, Circuit Judges.
Wallach, Circuit Judge.
ADC Telecommunications, Inc. ("ADC") sued Appellee
United States ("the Government") in the U.S. Court
of International Trade ("CIT"), challenging U.S.
Customs and Border Protection's ("Customs")
classification of imported Value Added Modules
("VAM") consisting of fiber optic
telecommunications network equipment under Harmonized Tariff
Schedule of the United States
("HTSUS")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
Subheading 8517.62.00, which bears a duty-free rate. The CIT
denied 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).
appeals. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(5) (2012). We affirm.
subject merchandise "consists of fiber optic
telecommunications network equipment" and "is
included in [ADC's VAMs] product line."
ADC, 2017 WL 4708021, at *2 (citations
omitted). "Fiber optic telecommunications
networks operate by pulses of light in the infrared
wavelength 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.
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
fibers into their networks," and protective
"housing" or "jacketing 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 network in order to evaluate
performance and detect problems," and (3) wavelength
division multiplexer ("WDM") modules, which
"permit infrared signals of two different wavelengths to
travel simultaneously on a single fiber, thereby increasing
the capacity." Id. (citations and footnotes
omitted). 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," and the merchandise does
not "contain any electronic components or electrical
circuit boards." Id. at *3 (citations omitted).
determined that HTSUS Heading 9013, which covers "other
optical appliances and instruments, not specified or included
elsewhere in this chapter," is "an apt description
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 communication 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
subject 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 pursuant to [Section XVI] Note 1(m)." Id. at
*6 (italics omitted).
Standard of Review
review the CIT's decision to grant summary judgment 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,
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).
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
provision, 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, ...