CLA-2 OT:RR:CTF:TCM H251018 DSR
Ms. Sandra Liss Friedman
Barnes Richardson & Colburn LLP
475 Park Avenue South
New York, NY 10016
RE: Revocation of NY N247006, NY N159136 and N159575; tariff classification of plastic fiber optic products from Japan
Dear Ms. Friedman:
This is in response to your letter, dated January 9, 2014, requesting reconsideration of New York Ruling Letter (NY) N247006, dated October 31, 2013. NY N247006 pertains to the tariff classification under the 2013 Harmonized Tariff Schedule of the United States (HTSUS) of plastic optical fiber products used to transmit light. The ruling classified the products in subheading 9001.10.00, HTSUS, which provides for optical fibers for transmission of voice, data or video communications. The corresponding, column one general rate of duty was 6.7 percent ad valorem.
We have reviewed the tariff classification of the merchandise and have determined that the cited ruling is incorrect. Therefore, NY N247006 is revoked for the reasons set forth in this ruling. In addition, we are revoking NY N159136 and N159575, both dated May 4, 2011, for the same reasons.
The five items are designated as SH 6001-2.2, BH 4001, GH 4001-1000-TR, SH 4002 and SH 6002. None of the items contains strength members. Item SH 6001-2.2 is composed of a single 1.5 mm plastic optical fiber core with fluorinated polymer cladding, and covered by a black polyethylene jacket. The overall diameter of the product is 2.2 mm and the jacket has a thickness of 0.35 mm. This product is used mostly in sensor applications. It is also commonly used for “prisoner at home bracelets.”
Item BH 4001 is composed of a single 1 mm plastic optical fiber core with fluorinated polymer cladding, and covered by a black polyethylene jacket. The product has an overall diameter of 2.2 mm and the jacket has a thickness of 0.6 mm. This product has generic applications, but for high temperature situations. The main customer for this product utilizes it as a data media for their operational instruments within a locomotive.
Item GH 4001-1000-TR is identical to BH 4001, other than the fact that it has a clear polyethylene jacket. This product has a specific application and is primarily used by electric utility companies to detect system sparks.
Item SH 4002 is described as a “figure-eight” design composed of two 1 mm plastic optical fibers (each with fluorinated polymer cladding) and covered by a black polyethylene jacket. The individually jacketed fibers are joined together lengthwise. In appearance, this item consists of side-by-side single strands of optical fiber individually covered by a black jacket. The product has an overall diameter of 4.4 mm and each jacketed fiber has an overall diameter of 2.2 mm. The jacket has a thickness of 0.6 mm. This product has generic applications, however the main customers are in the medical industry. It is used as a media for instrument control.
Item SH 6002 is described as a “figure-eight” design composed of two 1.5 mm plastic optical fibers (each with fluorinated polymer cladding) and covered by a black polyethylene jacket. The individually jacketed fibers are joined together lengthwise. In appearance, this item consists of side-by-side single strands of optical fiber individually covered by a black jacket. The product has an overall diameter of 6 mm and each jacketed fiber has an overall diameter of 3 mm. The jacket has a thickness of 0.75 mm. This product is used primarily as a sensor media and the main customer is a medical instrument producer.
Whether the subject items are classified under heading 8544, HTSUS, which provides, in pertinent part, for optical fiber cable composed of individually sheathed fibers; or are instead classified under heading 9001, HTSUS, which provides, in pertinent part, for optical fibers, optical fiber bundles, and optical fiber cables other than those of heading 8544.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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, the remaining GRIs 2 through 6 may then be applied in order. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration in this case are as follows:
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:
* * *
8544.70.00 Optical fiber cables:
* * *
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:
9001.10.00 Optical fibers, optical fiber bundles and cables:
* * * *
Heading 9001, HTSUS, provides, in relevant part, for optical fibers, optical fiber bundles and optical fiber cables (other than those of heading 8544, HTSUS). Thus, if the subject items are classifiable at heading 8544, they cannot be classifiable at heading 9001, HTSUS.
EN 85.44 states that optical fiber cables of heading 8544, HTSUS, are made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors. EN 85.44 does not exclude optical fiber cables containing a single optical fiber strand. EN 90.01(B) states that, optical fibers classifiable under heading 9001, 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 fibers less prone to fracture. … They are used to make optical fiber bundles and optical fiber cables.” EN 90.01(C) states that optical fiber bundles “may be rigid, in which case the fibers are agglomerated by a binder along their full length, or they may be flexible, in which case they are bound only at their ends.” EN 90.01 concludes by stating that optical fiber cables of heading 9001, HTSUS, “… consist of a sheath containing one or more optical fiber bundles, the fibers of which are not individually sheathed.”
It is evident that whether optical fibers are individually sheathed is at least one determinative factor regarding the applicability of headings 8544 or 9001, HTSUS. If an individual optical fiber is sheathed, or an item is composed of individually sheathed optical fibers, then that fiber and item cannot be classified in heading 9001, HTSUS.
With regard to the meaning of the term “individually sheathed,” the term must be construed in accordance with its common and commercial meanings because neither the legal notes or heading texts, nor the Harmonized Commodity Description and Coding System Explanatory Notes, provide guidance as to the meaning of the expression. See 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.
Generally, a typical optical fiber is comprised of three main components -- the core, cladding and coating. The cladding surrounds the core and has a lower refractive index that enables it to contain the light. The coating is typically colorless and very thin, and makes the fiber less prone to fracture by absorbing the chocks, nicks, scrapes and moisture that could damage the cladding. See Andrew Oliviero and Bill Woodward, The Complete Guide to Copper and Fiber-Optic Networking, Chapters 8 and 21 (Sybex 5th Ed., 2014) (discusses typical composition of a fiber optic strands and cable). In HQ 963016, dated April 3, 2001, we examined the meaning of “individually sheathed” and noted that the mere application of a thin primary inking or coating applied to a fiber optic strand primarily for color-coding would not constitute a "sheath" for purposes of heading 8544, HTSUS. Additionally, we have noted that the noun "sheath" is considered a "close fitting protective covering." HQ 965593, dated July 16, 2003 (citing Cambridge International Dictionary of English, March 1995, and Webster’s Third New International Dictionary, 1965). Also, the verb "sheathe," from which the term "sheathed" derives, means "to cover or encase." Examples of sheathes include, of course, scabbards for swords, but also close fitting dresses and encapsulating coverings. Thus, the terms "sheath" or "sheathed" connote the active process of covering with something that protects. Moreover, the terms "cover" and "coat" are acceptable synonyms for the term "sheath." See Roget’s International Thesaurus, 3d. Ed. (1962). It is therefore evident that an optical fiber is aptly considered to be “individually sheathed” if a protective covering surrounds that individual fiber’s core, cladding and coating.
Our reconsideration of NY N247006 does not end there. With regard to the meaning of the term optical fiber “cable,” NY N247006 noted that CBP had developed a definition that required all such cables to include strength members. For instance, in HQ 964883 (September 14, 2001), CBP addressed the classification of certain jacketed plastic optical fibers with connectors. In determining the common and commercial meaning of the term "cable," CBP relied on a meaning reflected in David R. Goff, Fiber Optic Reference Guide 153 (Kimberly S. Hansen ed., Focal Press 1st ed. 1996) in which the term "cable," in reference to optical fiber cable, was defined as "[o]ne or more optical fibers enclosed within protective covering(s) and strength members." The ruling also noted that another optical fiber cable industry glossary defined "cable" as "[a]n assembly of optical fibers and other material providing mechanical and environmental protection and optical insulation of the waveguides." See Lascomm, Fiber Optic Division, Fiber Optic Glossary, www.lascomm.com, 3/28/01. CBP thus concluded that all optical fiber cable must contain strength members. Compare HQ 966619 (October 31, 2003) (individually sheathed glass fiber optical cable assemblies containing strength members classified in heading 8544, HTSUS, and those glass fiber optical assemblies without strength members classified in heading 9001, HTSUS).
Further, in NY N247006, CBP stated the following while determining whether the subject items are optical fiber cables within the meaning of heading 8544, HTSUS. To wit:
First the fibers, which are composed of a core surrounded by a cladding, must be individually sheathed. The sheathing is a protective layer that surrounds ‘EACH’ fiber. Second, the individually sheath fibers must be assembled into a cable. CBP has determined that a cable would include an outer protective jacket that surrounds all of the sheathed fibers as well as strength members (aramid yarn fiber).
CBP then concluded that the subject items were not “optical fiber cables” of heading 8544, HTSUS, because they lacked outer jackets and strength members.
We have re-examined NY N247006 and are now of the opinion that plastic optical fiber cables, made up of individually sheathed plastic fibers, do not need to employ strength members in order to be classifiable in heading 8544, HTSUS, as such a requirement is not supported by the text of the tariff, nor does it reflect commercial realities associated with plastic optical fiber. At the time HQ 964883 was published, plastic optical fiber was not widely used. Indeed, the chief reference cited in HQ 964883 – Fiber Optic Reference Guide (1996) – did not extensively address the composition of plastic optical fiber, and instead focused upon the construction and uses of glass optical fiber. The later edition of that reference also emphasized glass fiber. See David R. Goff, Fiber Optic Reference Guide (2d. ed. 1999). The contemporary commercial reality is that plastic optical fibers are usually employed over relatively short distances and are flexible enough to withstand greater amounts of bending stress than glass optical fiber and, thus, typically do not employ or need strength members.
Here, the items designated as SH 6001-2.2, BH 4001, GH 4001-1000-TR in NY N247006 each consists of a single strand of plastic optical fiber sheathed in an easily discernable, relatively thick, protective polyethylene jacket. None of the items possess strength members. These three items are clearly not the unsheathed optical fibers, optical fiber bundles made up of several unsheathed fibers, or optical fiber cables consisting of a sheath containing one or more optical fiber bundles, contemplated by heading 9001, HTSUS. Instead, they are plastic optical fibers individually sheathed in protective coverings and are properly classified as fiber optic cables of subheading 8544.70.00, HTSUS.
The remaining two items designated as SH 4002 and SH 6002 are each composed of two strands of plastic optical fiber, each strand individually sheathed by an easily discernable, relatively thick, protective black polyethylene jacket, and joined along their lengths. The items do not possess strength members. They are also properly classified as fiber optic cables of subheading 8544.70.000, HTSUS.
By application of GRI 1, the subject items identified as SH 6001-2.2, BH 4001, GH 4001-1000-TR, SH 4002 and SH 6002 are classifiable under heading 8544, HTSUS. Specifically, they are classifiable under subheading 8544.70.00, HTSUS, which provides for “Optical fiber cables.” The column one, general rate of duty is “Free.” Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided at www.usitc.gov/tata/hts.
EFFECT ON OTHER RULINGS:
NY N247006, dated October 31, 2013, and NY N159136 and NY N159575, both dated May 4, 2011, are hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division