CLA-2 RR:CR:GC 965593 JAS
Frederick L. Ikenson, Esq.
Blank Rome LLP
900 17th Street, N.W.
Washington, D.C. 20006
RE: Optical Fiber Cables Made Up of Individually Sheathed Fibers
Dear Mr. Ikenson:
In a letter to Customs Headquarters, dated April 16, 2002, on behalf of Corning Cable Systems LLC, you request that we reconsider and modify a series of rulings which classified certain optical fiber cables in a provision of heading 8544, Harmonized Tariff Schedule of the United States (HTSUS), as optical fiber cables made up of individually sheathed fibers. You contend that the cables are not made up of individually sheathed fibers and, for that reason, must be classified in provisions of heading 9001, HTSUS, as optical fiber cables other than those of heading 8544.
Your request relates to six (6) rulings, all on substantially identical merchandise. These are HQ 964632, HQ 963213, HQ 963256, HQ 962322, HQ 962445, and HQ 963016, all dated April 3, 2001. However, because the facts and legal issues are the same in each ruling, we will confine our discussion to HQ 963016, issued to Corning Cable Systems LLC. In rendering this decision, consideration was given to the contents of your April 16 submission, which included samples, together with the factual and legal presentation you made during a teleconference with members of my staff on September 25, 2002.
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The merchandise in this case is described in HQ 963016, which is incorporated by reference. It was noted in that decision that Corning’s “loose tube” or LT and “tight buffered” or TB optical fiber cables are made up of optical fibers each consisting of three main regions: 1) a center region or glass core which carries the light; 2) a cladding of glass which surrounds the optical fiber core, and 3) two layers of an acrylate or thermoplastic coating applied to the cladded core, i.e., one a soft inner coating adjacent to the fiber to protect against mechanical stresses on the fiber referred to as microbending, and a hard outer coating to resist abrasion. Some or all of these fibers may be further color coated for identification purposes only. Numerous coated fibers are then formed into cables for use in the telecommunications industry for transmitting light signals representing encoded electrical signals that include video, audio or data information.
You concede that the optical fibers in the TB optical fiber cable are individually
sheathed because, in addition to the glass core, cladding, dual acrylate coating, and
color coating, the fibers are further individually placed in a thermoplastic buffer, which
constitutes a sheath or sheathing under heading 8544. Optical fiber cables composed
of optical fibers that are not individually sheathed would be classifiable under heading
It is the makeup of the fibers in the LT optical fiber cables that is at issue
The HTSUS provisions under consideration are as follows, with emphasis
added: heading 8544 which includes optical fiber cables, made up of individually
sheathed fibers, whether or not assembled with electric conductors or fitted with
connectors, and heading 9001 which includes optical fiber cables other than
those of heading 8544.
Whether, as described, the LT optical fiber cables consist of optical fibers that
are “individually sheathed” for purposes of heading 8544.
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.
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HQ 963016 stated that because neither the legal notes or heading texts, nor the Harmonized Commodity Description and Coding System Explanatory Notes, provide guidance as to the expression “individually sheathed,” the term must be construed in accordance with its common and commercial meanings. 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. The ruling noted further that 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, the application of a thin primary inking or coating applied primarily for color-coding, would not constitute a “sheath” for purposes of heading 8544, HTSUS. HQ 963016 then concluded that 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.” (Emphasis added). Communications Standard Dictionary, 3rd Ed., p.98. It was this technical definition that formed the basis for establishing the common meaning of the term “individually sheathed” for purposes of heading 8544. See THK America, Inc. v. United States, 17 CIT 1169 (1993), on the use of specialized sources within the involved industry as indicia of common meaning.
You assert the following in support of the contention that the LT cables are not individually sheathed for tariff purposes: 1) since along with the glass core and cladding the acrylate coating is considered a constituent part of the fiber, it would be illogical for the drafters of the HTSUS to have intended the words “individually sheathed fibers” to mean “fibers having an acrylate coating,” 2) the acrylate coating is not within the common and commercial meaning of the term “sheath,” 3) Customs never established the common meaning of the term “individually sheathed” to include the LT cables and, 4) in the context of optical fiber ribbon cable, the subject of a related ruling, under the so-called “pre-existing materials” doctrine, individually sheathed fibers do not pre-exist the formation of the cable.
We have undertaken a full and comprehensive review of all the legal arguments
you raised. However, noting the principles of Apple Computer Inc. v. United States, 749
F. Supp. 1142 (CIT 1990), we will limit our discussion to the issue on which this case
turns, i.e., the common meaning of the term “individually sheathed.” In addition to the
definition referenced in HQ 963016, we note the noun “sheath” is considered a “close
fitting protective covering.” 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, has the following meaning: “to cover or encase.” Examples of sheathes include, of course, scabbards for swords, but also close fitting dresses and encapsulating coverings. Thus, the term “sheath” or “sheathed” connotes the active
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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).
All of the optical fibers used in Corning’s LT optical fiber cables are coated with its dual acrylate protective coating. The subject optical fiber is individually coated with 62.5 microns of protective dual acrylate (245 microns in diameter), which enhances microbending resistance, improves the ability of an individual optical fiber to be stripped for repairs, and improves the individual optical fiber’s environmental stability. Therefore, we affirm the opinion expressed in HQ 963016 that LT optical fiber cable composed of this optical fiber and coated with Corning’s combination of dual acrylate and additional thin layer of color coating, are considered “individually sheathed” under heading 8544, HTSUS. We conclude that 62.5 microns of dual acrylate and color coatings do substantially add to the overall protection, security, and reliability of each individual optical fiber, and that the fibers are considered to be individually sheathed.
For all of the reasons discussed, when fairly and objectively evaluated, the evidence of record amply supports the conclusion that the optical fibers in Corning’s LT optical fiber cables, processed as indicated, are considered “individually sheathed” for tariff purposes. Under GRI 1, these cables are provided for in heading 8544. They are classifiable in subheading 8544.70.00, HTSUS.
HQ 963016, together with HQ 964632, HQ 963213, HQ 963256, HQ 962322,
HQ 962445, all dated April 3, 2001, are affirmed.
Myles B. Harmon, Director
Commercial Rulings Division