CAFC Defines "Optical"

Is something "optical" if you can't see it and it does not affect your vision? That is the basic question in ADC Telecommunications, Inc. v. United States, a recent decision of the Court of Appeals for the Federal Circuit.

The merchandise involved is telecom optical network equipment. The equipment uses light to move data through fibers. This particular network operates in the infrared end of the light spectrum, meaning the actual light involved is invisible to human eyes.

This is probably what comes to mind when you think about optical fiber.


This is what comes to my mind, but that is a personal issue. I think what we are actually talking about is something like this:



Customs & Border Protection classified the equipment in 9013.80.90 as optical appliances and instruments. The importer believes the correct classification to be 8517.62.00 as "Machines for the reception, conversion and transmission or regeneration of voice, images or other data, including switching and routing apparatus." On their face, either seems reasonable.

The Court of Appeals started its analysis with 9013. Everyone seemed to agree that as a factual matter, the equipment operated at the infrared, and therefore invisible, end of the spectrum. To qualify as an optical appliance or instrument, the item has to incorporate one or more optical elements that do not serve a subsidiary purpose. Chapter 90, Note 3. So a compass that includes a small magnifier to make the needle more visible is a compass and not an optical appliance.

Unfortunately, that does not tell us what the word "optical" means in this context. When that happens, the Court looks to the common and commercial meaning of the term as illustrated in, among other places, dictionaries. It turns out that there are a variety of definitions. These range from "acting on light in some desired way" to "of or pertaining to sight." Taking a step back, the Court noted that "optics" is the science of light (but it is also the science of sight). Thus, we are about to enter a battle of the definitions.

Looking to prior decisions and as far back as the 1929 Summary of Tariff Information, the Court found a useful set of meanings (note that is plural) for optical. According to prior cases, something is optical where: (1) the device acts on or interacts with light, (2) the device permits or enhances human vision through the use of one or more optical elements, or (3) the device uses the optical properties of the device in something more than a ‘subsidiary’ capacity. These are separate factors for consideration and no one is necessary for the item under consideration to be optical.

Here the Court found that the optical network equipment interacts with light. It also uses the light in a way that is more than subsidiary. Consequently, 9013 applies.

What about 8517? Unfortunately, chapter XVI, Note 1 excludes goods of Chapter 90 from the Section and, therefore, from Chapter 85. Following that guidance, the Court of Appeals affirmed the Court of International Trade and upheld CBP's classification.


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