CLA-2 RR:CR:GC 962322 BJB
Robert E. Burke
Barnes, Richardson & Colburn
303 East Wacker Drive, Suite 1100
Chicago, IL 60601
RE: Optical Fiber Cable, Individually sheathed fibers.
Dear Mr. Burke:
This is in response to your letter of September 14, 1998, to the Customs National Commodity Specialist Division, New York, on behalf of Minnesota Mining & Manufacturing Company (“3M”), requesting a ruling on the tariff classification of optical fiber cable under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for reply. 3M has submitted sample lengths of its 2 and 4 fiber plenum and low smoke zero halogen, and “backbone” optical fiber cables with additional explanatory materials. Further information was obtained from 3M’s internet website. In preparing this ruling, we also gave consideration to your letters of July 16, 1999, January 11, 2000, February 23, 2001, `and your March 29, 2001 response, to our December 28, 2000 request for further information.
FACTS:
The subject optical fiber cables are composed of 2 or more strands of coated glass optical fibers. Optical fibers are extremely thin strands of ultra-pure glass designed to transmit light signals from a transmitter to a receiver. These light signals represent encoded electrical signals that include video, audio, or data information in any combination.
An optical fiber consists of three main regions. 1) The center region of the fiber is the glass core. This region actually carries the light. The optic core ranges in diameter from 8 microns to 100 microns in the most commonly used fibers. 2) Surrounding the optical fiber core is a region called the cladding. The cladding, typically, is also made of glass and has a diameter of 125 microns or 140 microns. 3) The third region of the optical fiber, includes the acrylate coating that provides protection to the individual optical fibers against microbending and abrasion.
Once light enters a glass fiber, the cladding layer prevents light loss as the beam of light zigzags along, inside the glass core. Glass fibers can transmit messages or images by having beams of light directed through their cores over very short or very long distances, without significant distortion. The pattern of light waves forms a code that carries a message. At the receiving end, the light beams are converted back into electric current, and decoded. Since light beams are immune to electrical noise and can be carried greater distances before fading, this technology is used heavily in telecommunications.
As the glass fiber comes out of the furnace, it has a highly polished pristine surface with a theoretical strength in the range of 12-20 Giga-Pascals (GPa). To preserve this high strength, polymeric coatings are applied immediately after the drawing. Usually two layers of acrylate coatings are applied to the cladded core: (1) a soft inner acrylate coating adjacent to the fiber to avoid microbending loss, and (2) a hard outer acrylate coating to resist abrasion. The coatings may be ultraviolet (UV) curable acrylates, UV-curable silicones, hot melts, heat-curable silicones or nylons. When dual coatings are applied, the coated fiber diameter is typically within a range of 235 – 250 microns.
A dual acrylate polymer coating is applied to the subject optical fibers during their manufacturing process. You state that the thickness of the UV curable dual acrylate coatings and coloring is “in keeping with industry standards.” The dual acrylate polymer coating provides important fiber protection and structural integrity to the bare glass fibers, responsible for each fiber’s tensile strength, to the extent that the bare glass fibers could not be used without it. The application of dual acrylate polymer coatings/sheathing provides significant protection against abrasion of the optic fibers, enhances tensile strength and reduces the effects of long-term stress, in particular exposure to humid environments which can lead to failure due to a phenomenon called “static fatigue.” After the individual fibers are manufactured (with their coatings) an additional color coating is applied and they are placed inside buffer tubes. Each cable has a varied number of individual optical fibers grouped in buffered tubes or similar coverings, including different types of insulation, which are all contained within a particular cable’s outermost layer or jacket. The finished optical fiber cable is then imported.
ISSUE:
Whether 3M’s optical fiber cables using dual acrylate coatings and color coating process 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 XVIII, Chapter 90, Note 1(h), states that “optical fiber cables of heading No. 85.44” are not covered in
Chapter 90. Optical fiber cables composed of optic fibers that are not “individually sheathed” would be classifiable under heading 9001. Therefore, the issue to resolve is, whether the instant cables are individually sheathed.
The legal notes and heading texts, as well as the ENs, do not provide a definition of the term: “individually sheathed.” 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).
As a result of technological advances, optical fiber cables may not always be comprised of optical fibers that are covered with the traditional, thick, protective, removable plastic. However, a thin inking or color coating, applied primarily for color-coding, would not constitute a “sheath” for purposes of heading 8544, HTSUS. A “buffered fiber” is the general term used in the optical fiber cable industry to describe “[a]n optical fiber that has a coating over the cladding for protection, increased visibility, and ease of handling.” Communications Standard Dictionary, 3rd Ed., p.98.
The strength of an optical fiber is of such fundamental importance that an optical fiber is subjected to a process called “proof testing.” This testing subjects an optical fiber to levels of controlled “proof stress” reflecting those stresses that it will encounter during manufacture, storage, installation, and service. As a result, an optical fiber’s strength can be quantified.
Proof testing not only guarantees that an optic fiber possesses the strength to survive short-term stresses, but it also guarantees that a fiber will survive a lower residual stress that it may be subjected to during its long service life (sometimes as long as 40 years). Proof testing can be performed in-line immediately after the glass optic fiber core and cladding are drawn and coated, or off-line before the fiber is stored. Optic fibers that survive proof testing are those stored for further packaging into cables.
The process used in the application of dual acrylate polymer coatings to the optical fibers involves polymerization of the resins and (UV) lamps to ‘cure’ the thin ink layer applied to the coating surface. 3M asserts industry standard specifications for coated, colored optic fibers are 250+/-15 microns, and claims that its optical fibers, once the dual acrylate polymer and color coating are applied meet or exceed this standard.
The amount of coating applied to 3M optical fiber is approximately 60 microns thick and reflects “an industry standard.” 3M has established that its dual acrylate polymer coating protects the individual optical fibers from abrasions on the glass core and cladding that could cause short or long-term failures.
3M states that each of the subject optical fibers is manufactured individually, with its dual-layer acrylate coating but that a color coating is applied at a later stage. 3M emphasizes that its optical fibers are individually produced, clad and coated. 3M has submitted that its 2 and 4 optical fiber plenum and low smoke zero halogen cables are made of individually coated (sheathed) fibers. 3M submits that the color coating applied is used for identification of each optical fiber down the length of the cable and also provides some protection from abrasions, solvents and moisture.
Insofar as the subject optical fiber is individually coated with approximately 60 microns of protective dual acrylate, it is our opinion that optical fiber cable composed of this optical fiber and coated with this combination of approximately 60 microns of dual acrylate coatings and additional color coating would be classifiable as “individually sheathed” under heading 8544, HTSUS. In this case, 3M’s dual acrylate coatings do substantially add to the individual optical fiber’s overall protection, security, and reliability, and should be considered sheathing.
Heading 9001, HTSUS, provides for optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544. EN 90.01 states, that this heading covers inter alia, optical fibres and optical fibre bundles, as well as optical fibre cables other than those of heading 8544. Thus, if the subject optical fiber cables are classifiable at heading 8544, they would not be classifiable at heading 9001, HTSUS. EN 90.01(A) describes “Optical fibre cables” classifiable at this heading. They “consist of a sheath containing one or more optical fibre bundles, the fibres of which are not individually sheathed.” Insofar as we have determined that the optical fibers used in 3M’s optical fiber cables are, in fact, “individually sheathed,” they are not classifiable under heading 9001. EN 90.01(A) further states that, “Optical fibres” classifiable under heading 9001, consist of “concentric layers of glass or plastics of different refractive indices[.]” “[T]hose drawn from glass have a very thin coating of plastics, invisible to the naked eye, which renders the fibres less prone to fracture.” The dual acrylate polymer coating is clearly visible to the naked eye, even without the additional color coating, (though the color coating enhances visibility), and are not proportionately “very thin” with respect to the diameter of the optical fiber core and cladding. Fundamentally, the coating/sheathing protects the individual optical fiber more than by rendering it “less prone to fracture,” referenced in EN 90.01(A).
It is not our view that every coating, buffering, jacket, covering, or sheathing, merely because it is called a “sheathing,” or has some of the qualities exhibited by 3M’s dual protective coating, affords an optical fiber sufficient protection for it to be classifiable under heading 8544, as “individually sheathed.” In this case, the dual acrylate polymer coating does afford the individual optical fiber sufficient protection for the subject merchandise to be classifiable under heading 8544, HTSUS, as “individually sheathed.” Therefore, at GRI 1, we find that the merchandise is classifiable under heading 8544, HTSUS. See HQ Rulings 962445, 963016, 963213, 963256, and 964632 of this date for similar rulings.
HOLDING:
The subject “individually sheathed” optical fiber cables are classifiable under 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.”
Sincerely,
John Durant, Director
Commercial Rulings Division