CLA-2 RR:CR:GC 964883 BJB
Port Director of Customs
605 West 4th Avenue, Room 205
Anchorage, AK 99501
RE: Protest 3196-00-100009; Optical fiber cable; Individually sheathed fibers;
Dear Port Director:
The following is our decision on Protest 3196-00-100009, filed against your classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of jacketed optical fibers with connectors, described as optical fiber cables. The entries under protest were liquidated on August 11, 2000, and this protest was timely filed on November 9, 2000.
The goods are jacketed, plastic optical fibers, each with a connector mounted on one end. Ramco Electric Corporation (“protestant”) submitted four samples, identified as items: FT-P40, FT-A8, FD-B8, and FD-FM2, as well as, additional explanatory materials dated September 10, 2001.
Articles FT-P40 and FT-A8, are each composed of a single strand of plastic optical fiber covered by a black plastic jacket. Each of these samples has a different type of connector mounted on one end of its individual optical fiber strand. Items FD-B8 and FD-FM2 are made up of two single strands of plastic optical fiber. However, in the case of items FD-B8 and FD-FM2, each of the two individual optical fiber strands comprising the article is individually covered by a black plastic jacket. These two singular (separately) jacketed optical fibers are then both inserted into a connector at one end.
These articles use individual plastic optical fibers or strands, each having a plastic core and plastic cladding and then placed directly into a plastic jacket absent an assembly of optical fibers and/or other materials layered or placed together to provide additional mechanical strength or environmental protection.
Protestant claims classification of the merchandise under subheading 8544.70.00, HTSUS.
Whether a jacketed single strand plastic optical fiber with connector, and a combination of two single, individually jacketed, plastic optical fibers joined at a connector 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), HTSUS, states, 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 these goods constitute “optical fiber cables, made up of individually sheathed fibers,” provided for in heading 8544, HTSUS.
Recent Customs HQ rulings: 962322, 962445, 963016, 963213, 963256, and 964632, (all dated April 3, 2001), dealt with the interpretation of whether optical fiber cables made up of multiple optical fibers, bundles or units of glass optical fibers, were optical fiber cables, “made up of individually sheathed fibers,” as provided for in heading 8544, HTSUS. As noted above, the use of plastic or glass optical fibers in an optical fiber cable does not preclude an optical fiber cable’s classification in headings 8544 or 9001, HTSUS. Thus, the use of plastic optical fibers in the subject merchandise would not by itself mandate its inclusion or exclusion under heading 8544. Moreover, heading 8544, would not include or exclude optical fiber cables mounted on or attached to connectors like the present merchandise, where heading 8544, provides in pertinent part, for optical fiber cables, “whether or not assembled with electric conductors or fitted with connectors[.]”
However, the subject merchandise is clearly distinguishable from that in the above-cited rulings. In all of the cited rulings, all of the optical fiber cables were made up of multiple optical fibers jacketed together with other materials providing mechanical and environmental protection and optical insulation of the fibers or fiber bundles. The issue in the cited rulings was whether the multiple strands and bundles of optical fibers when jacketed together in a final outer covering were still held to be “individually sheathed,” as provided for in heading 8544, HTSUS, or whether they weren’t and would therefore be classifiable in heading 9001, HTSUS, which provides for “optical fiber cables other than those of heading 8544[.]” None of the optical fiber cables subject of those rulings involved a single strand optical fiber, or dual, single-strand jacketed optical fibers connected only at the point of insertion in a connector. Thus, the present merchandise is not similar to the broad range of optical fiber cables subject of the cited rulings.
In this protest, we must determined whether a single strand of jacketed optical fiber attached to a connector, (samples FT-P40 and FT-A8), constitutes an “optical fiber cable” as provided for in heading 8544. Then we must determine, whether protestant’s other two samples, FD-B8 and FD-FM2, constitute “optical fiber cable” provided for in headings 8544, or 9001.
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 “cable,” in reference to optical fiber cable, as, “[o]ne or more optical fibers enclosed within protective covering(s) and strength members.” Another optical fiber cable industry glossary defines “cable” as, “[a]n assembly of optical fibers and other material providing mechanical and environmental protection and optical insulation of the waveguides.” (Lascomm, Fiber Optic Division, Fiber Optic Glossary, www.lascomm.com, 3/28/01).
We must conclude, that an optical fiber cable is comprised of one or more optical fibers enclosed within protective covering and strength members. Additional language and discussion in headings 8544, 9001, and their respective ENs support this conclusion.
We note that EN 8544 states, that in addition to the insulated wire, cable and other insulated electric conductors provided for in heading 8544, “[t]he heading also covers optical fibre cables, made up of individually sheathed fibres, . . . .[and that] the sheaths are usually of different colours to permit identification of the fibres at both ends of the cable.” Although an optical fiber cable may be made of one or more optical fibers, it must include other materials, including strengthening members, to constitute a cable. Information readily obtained from scientific and industry sources demonstrates that an optical fiber cable is more than a single optical fiber sheathed in a plastic jacket. The subject single strand optic fiber articles are not classifiable in heading 8544, HTSUS, insofar as not every lone optical fiber individually sheathed in a plastic jacket constitutes an “optical fiber cable.”
Protestant argues that “sheathed individual fibers, or multiple fiber bundles which are individually sheathed, are specifically excluded from classification under HTS#9001.10. . . ..” Protestant’s conclusion is incorrect. While EN 9001, does provide that, “[t]he heading, . . ., excludes optical fibre cables made up of individually sheathed fibres (heading 85.44) [,]” contrary to protestant’s assertion, neither heading 9001, nor the ENs, provide that an individual sheathed or jacketed optical fiber constitutes an optical fiber cable under EN 8544. We note that EN 9001, specifically provides that “optical fibres and optical fibre bundles, as well as optical fibre cables other than those of heading 85.44” are covered in heading 9001. Insofar as all of protestant’s evidence demonstrates that its merchandise consists of single strand optical fibers individually jacketed, without the inclusion or use of any other protective buffers, coatings, or strengthening materials, the protested goods are not optical fiber cables provided for in heading 8544.
Although optical fibers may be used in a variety of applications, and therefore, the way they are packaged or cabled will also vary, it is well recognized in the optical fiber cable industry that there are generally five different basic types of cable designs. These designs include: a) loose tube, b) fluted, c) ribbon, d) stranded, and e) Lightpack optical fiber cables. All of these designs include multiple fibers, or fiber bundles, strengthening members, and insulating gels, water-blocking compounds, or additional buffers, layers, or sheathings. In addition to these five basic types of cable there are a number of other cable designs used for specific applications, however, as noted in “The Electrical Engineering Handbook,” (R. Dorf, CRC Press, (1993) at p. 999-1001), “all [of] these cable designs still rely on the basic  unit designs . . ..” None of protestant’s goods meet these descriptions of the above basic designs of an “optical fiber cable,” or the accepted definition of an optical fiber cable.
Protestant maintains that its sample items FD-B8 and FD-FM2, are “stranded” optical fiber cables, (see attachment to protestant letter dated September 15, 2000), but these articles too, like its other samples, lack any further strength members. The dual strands of the two articles are also not enclosed within a single protective covering. Insofar as the separate optical fiber strands of items FD-B8, and FD-FM2, are not covered within a single outer protective covering, and the simple insertion of the ends of two singular optical fiber strands into a connector, also fails to constitute an optical fiber cable, all four samples are not provided for under heading 8544, HTSUS. Thus, the protested merchandise is the subject goods appear prima facie classifiable in heading 9001, HTSUS, which provides for “[o]ptical fibers and optical fiber bundles, as well as 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. EN 90.01(A) describes “Optical fibres” classifiable under heading 9001. They consist of “concentric layers of glass or plastics of different refractive indices[.]” This in fact describes the single plastic optical fibers that make up each of protestant’s samples. EN 9001(A) also notes that “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.” This description matches that of items FD-B8 and FD-FM2, that are merely two separately jacketed optical fibers, only connected at one common point. These articles are also separately jacketed in flexible plastic coverings.
Finally, EN 9001 provides that “[o]ptical fibre bundles and cables are used primarily in optical apparatus . . ..” All of the protested articles (as identified by merchandise item numbers listed by the protestant (see Sunx Cable List, attachment Ramco letter dated September 15, 2000)), and located in the merchandise catalog submitted by the protestant demonstrated that the goods are in fact advertised for optical fiber sensor apparatus. Therefore, we conclude that all of the optical fibers with connectors do not constitute optical fiber cables provided for in heading 8544, HTSUS.
The optical fibers with connectors are classifiable at GRI 1, under subheading 9001.10.00, HTSUS, as “[o]ptical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544[.]”
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom on Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division