CLA-2 RR:CR:GC 964996 BJB
Pacific Interconnection Corporation
4811 N.E. 21st Street
Renton, WA 98059
RE: Optical Fiber Cable; Patchcords with connectors; Individually sheathed fibers.
Dear Ms. Wong:
This is in response to your letter of April 4, 2001, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the tariff classification of fiber optic patchcords with connectors, under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, with two samples, was referred to this office for reply. In preparing this ruling, consideration was also given to your supplemental submissions of October 17, and 25, 2001. Your submission of October 17, 2001, amended your original request, and limited it to the two samples provided. This was confirmed by telephone communication with our office and your letter of October 25, 2001. Additional information was obtained from Corning Cable Systems internet websites.
The sample merchandise you submitted is described as fiber optic patchcords with connectors. Patchcords are used for interconnecting equipment for voice, data, video, and imaging transmission. You state that both patchcords use the same Corning Cable Systems’ optical fiber known as “900 micron TBII Enhanced Optistrip Buffered Fiber.” This optical fiber has a glass core and cladding encased in 900 microns of buffered coating.
The two samples are as follows: 1) a single optical fiber strand patchcord made with the 900 micron TBII Enhanced Optistrip Buffered Fiber and a green plastic connector at each end (“patchcord one”). It has no other outer covering or additional strengtheners; and 2) a single optical fiber strand patchcord made with the 900 micron TBII Enhanced Optistrip Buffered Fiber, aramid yarn
strengtheners, an additional gray colored, 3.0 mm outer covering or jacket, and a metal coaxial ferrule connector attached at each end (“patchcord two”).
Whether the patchcords made of single optical fiber strands with connectors,
are classifiable under heading 8544, HTSUS, as “optical fiber cables, made up of individually sheathed fibers,” or under heading 9001, HTSUS, as “[o]ptical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; . . . [o]ptical fibers, optical fiber bundles and cables.”
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, HTSUS, goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUS provisions under consideration are as follows (emphasis added):
8544 Insulated (including enameled or anodized) wire, cable
(including coaxial cable) and other insulated electric
conductors, whether or not fitted with connectors; optical
fiber cables, made up of individually sheathed fibers,
whether or not assembled with electric conductors or
fitted with connectors:
* * * * * *
9001 Optical fibers and optical fiber bundles; optical fiber cables
other than those of heading 8544; sheets and plates of
polarizing material; lenses (including contact lenses),
prisms, mirrors and other optical elements, of any
material, unmounted, other than such elements of glass
not optically worked:
( ( ( ( ( (
EN 85.44 states that the heading also covers:
“optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors. The sheaths are usually of different colours to permit identification of the fibres at both ends of the cable. Optical fibre cables are used mainly in telecommunications because their capacity for transmission of data is greater than that of electrical conductors.”
Heading 9001, HTSUS, covers inter alia, “optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544[.]” Section XVI, Note 1(m), HTSUS, states that the section does not cover “[a]rticles of chapter 90.” Chapter 90, Note 1(h), HTSUS, also provides, in pertinent part, that “optical fiber cables of heading 8544” are not covered in Chapter 90. Thus, prior to a determination whether the subject goods are classifiable in heading 9001, HTSUS, we must first determine whether they constitute “optical fiber cables,” provided for in heading 8544, HTSUS.
In recent Customs HQ rulings: 962322, 962445, 963016, 963213, 963256, and 964632, (all dated April 3, 2001), the issue of whether optical fiber cables made up of multiple optical fibers, bundles or units of glass optical fibers, were classifiable as optical fiber cables, “made up of individually sheathed fibers,” as provided for in heading 8544, HTSUS, was discussed. All of the goods in the above-cited cases involved optical fiber cables with multiple strands of optical fiber. Patchcord one is clearly distinguishable from the optical fiber cables subject of those rulings. Although patchcord two has further strengtheners, and an additional, even thicker outer jacket that appears to be more like an optical fiber cable, it also has only one optical fiber strand.
In the above-cited rulings, the optical fiber cables not only contained multiple optical fibers, they were jacketed together with other materials providing mechanical and environmental protection and optical insulation of the fibers or fiber bundles. In those rulings, it was clear that the multiple optical fibers and/or bundles of such optical fibers, when assembled together with aramid yarn and other strengtheners, and jacketed together in an outer covering, constituted optical fiber cables. The issue was whether or not an application of two layers of acrylate coating to each fiber made then “individually sheathed,” within the scope of heading 8544, HTSUS.
Customs did not address whether a single optical fiber strand, covered by such coatings alone, would constitute an optical fiber cable classifiable in heading 8544, HTSUS. In the present case, the issue is whether either patchcord, with its particular construction and containing only a single optical fiber, constitutes an optical fiber cable as provided for in heading 8544, HTSUS.
The legal notes and heading texts, as well as the ENs, for chapter 85, and heading 8544, HTSUS, do not provide a definition of the term “optical fiber cable.” In the absence of such guidance, tariff terms may be construed in accordance with their common and commercial meanings. Nippon Kogasku (USA), Inc., v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable resource materials. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
The Fiber Optic Reference Guide, David R. Goff, Focal Press, (1996) at
p. 153, defines the term “fiber optic cable,” as, “[a] cable containing one or more optical fibers[,]” and a “cable” as: “[o]ne or more optical fibers enclosed within protective covering(s) and strength members.” Moreover, “The Telecommunications: Glossary of Telecommunication Terms,” published by the National Communications System Technology & Standards Division, General Services Administration, Information Technology Section, (August 7, 1997), defines a “fiber optic cable” as “[a] telecommunications cable in which one or more optical fibers are used as the propagation medium. Note 1: The optical fibers are surrounded by buffers, strength members, and jackets for protection, stiffness, and strength.”
Language in EN 85.44 supports these commercial definitions. It states that the heading covers “optical fibre cables, made up of individually sheathed fibres, . . .” but it does not exclude optical fiber cables made with a single optical fiber strand. Patchcord two, with 900 micron TBII Enhanced Optistrip Buffered Fiber, aramid yarn strengtheners, and additional, thicker 3.0 mm external jacket, clearly meets these definitions of optical fiber cable. At GRI 1, and by application of Note 1(h) to Chapter 90, HTSUS, patchcord two is classifiable in heading 8544, HTSUS.
In HQ 964883, dated September 14, 2001, Customs determined that a single strand of buffered or jacketed optical fiber, with a connector attached at each end, was classifiable in subheading 9001.10.00, HTSUS. In that case, the merchandise was similar to patchcord one. As noted above, patchcord one is even more limited in construction than patchcord two. Although the lexicon definitions cited above, suggest that an optical fiber cable may be made of one or more optical fibers, it must include additional materials, including strengthening members, to constitute a cable. Insofar as patchcord one is made of only a single optical fiber and its 900 micron coating, as described, and absent any additional visible buffer, members, or strengtheners, it is not an optical fiber cable provided for in heading 8544, HTSUS.
At GRI 1, and pursuant to Section XVI, Note 1(m), and Chapter 90, Note 1(h), having first determined that patchcord one is not an “optical fiber cable” provided for in heading 8544, HTSUS, we must determine whether it is described by the terms of heading 9001, HTSUS, “optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544[.]” From the terms of heading 9001, it appears prima facie that patchcord one falls within its scope where patchcord one is constructed with a single optical fiber and the specific term “optical fibers” in this heading is very broad in scope.
EN 90.01, HTSUS, states in pertinent part:
“Optical fibres consist of concentric layers of glass or plastics of different refractive indices. Those drawn from glass have a very thin coating of plastics, invisible to the naked eye, which renders the fibres less prone to fracture. Optical fibres are usually presented on reels and may be several kilometers in length. They are used to make optical fibre bundles.
Optical fibre bundles may be rigid, in which case the fibres are agglomerated by a binder along their full length, or they may be flexible, in which case they are bound only at their ends. If coherently bundled, they are used for transmission of images, but if randomly bundled, they are suitable only for transmission of light for illumination.
Optical fibre cables of this heading (which may be fitted with connectors) consist of a sheath containing one or more optical fibre bundles, the fibres of which are not individually sheathed.
Optical fibre bundles and cables are used primarily in optical apparatus, particularly in endoscopes of heading 90.18.
The heading, however, excludes optical fibre cables made up of individually sheathed fibres (heading 85.44).”
While EN 90.01 provides for two types of “optical fibre bundles,” rigid and flexible, both types are “made of multiple optical fibres.” Patchcord one with its single strand of optical fiber would not meet this description. The term “[o]ptical fibre cables,” as described in EN 90.01, provides that “optical fibre cables of this heading (which may be fitted with connectors) consist of a sheath containing one or more optical fiber bundles. . ..” Absent even one optical fiber bundle, patchcord one fails to conform to this description as well.
The description of the term “optical fibers” in EN 90.01, above, focuses on aspects of their composition, appearance, use, and handling. EN 90.01 does not limit “optical fibers” to only those that have a thin coating invisible to the naked eye, nor does it require that they be presented on reels.
There have been many technological advances in the optical fiber and optical fiber cable industry in recent years (See, e.g., HQ ruling 963016, supra.). Even though the “meaning of an eo nomine designation is determined as of the effective date of the tariff statute[,]” it “will include all articles subsequently created which fairly come within its scope.” See Ruth Sturm, Customs Law & Administration, 3rd ed. (1993) §53.2, p.9, citing court decisions in Sears, Roebuck & Co. v. United States, 46 CCPA 79, C.A.D. 701 (1959), and Hoyt, Shepston & Sclaroni et al., 52 CCPA 101, C.A.D. 865 (1965), (see also Lonza, Inc. v. United States, 46 F.3d 1098, 1107 (1995)).
In HQ 960948, dated September 11, 1998, Customs, citing scientific sources and lexicons, noted that “[t]he function or use of optical fibers is to transmit information in the form of light through very thin flexible strands (see Random House Unabridged Dictionary (2d ed. 1993), [and] ‘optical fiber,’ [is] a very thin flexible glass or plastic strand along which large quantities of information can be transmitted in the form of light pulses: used in telecommunications, medicine, and other fields[.]”
Determining that the glass preform in HQ 960948, from which fiber is drawn, was not classifiable in heading 9001, Customs held that essential physical characteristics of an optical fiber include that it must be thin and flexible, and meet “the recognized industry-standard bend diameter.” Customs concluded that where EN 90.01 provides “optical fibres are usually presented on reels and may be several kilometers in length,” this statement “supported the treatment of thinness and flexibility as essential characteristics of optical fibers.” The statement was not limited in its interpretation to mean that only optical fiber presented on reels and several kilometers in length was classifiable in heading 9001.
Applying the above descriptions and analysis, patchcord one, with its single glass optical fiber, connectors and very limited construction, is an optical fiber, classifiable in heading 9001, HTSUS.
At GRI 1, patchcord one is classifiable in subheading 9001.10.00, HTSUS, as “[o]ptical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; . . .: Optical fibers, optical fiber bundles and cables[,]” and patchcord two, is classifiable as an individually sheathed single-strand optical fiber cable with connectors in subheading 8544.70.00, HTSUS, which provides for: “[i]nsulated
(including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors: Optical fiber cables.”
John Durant, Director
Commercial Rulings Division