CLA-2RR:CTF:TCM 967059 AML
Mr. Frederick L. Ikenson
Blank Rome, LLP
600 New Hampshire Avenue, NW
Washington, D.C. 20037
Re: Glass rod used to create optical fibers; HQ 964879 modified
Dear Mr. Ikenson:
This is in reference to Headquarters Ruling Letter ("HQ") 964879, issued to you March 21, 2002, on behalf of Corning, Inc., regarding the tariff classification of certain glass rod under the Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"). We have reconsidered the rationale employed to reach the determination in HQ 964879. While this letter does not affect the classification in HQ 964879, it clarifies the factual predicates and sets forth the proper rationale for the classification decision made therein.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. § 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)), notice of the proposed modification of HQ 964879 was published on November 2, 2005, in Vol. 39, No. 45 of the Customs Bulletin. Two comments (one in favor and yours in opposition) were received in response to the notice.
We described at length the glass rods and their method of manufacture in HQ 964879. Essentially, layers of microscopic glass particles (silica and germania) called "soot" are deposited by gas flame or vapor chemical deposition onto a ceramic "target" rod to form a core. A protective layer of pure silica cladding material is added to protect the core from scratching and to reflect inward or contain within the core pulses of light passing through the glass core. The resulting article has a chalky consistency and is referred to as a "core preform." The target or bait rod is removed to leave a solid silica-clad glass core which is then baked in an oven. This makes the core smaller and more dense and causes it to become clear. The core preform is then softened in an annealing furnace to permit drawing of the preform into an elongated rod of smaller diameter called a "cane." The cane is cooled and then cut into various lengths. Based on these facts, analyses made in prior rulings, and reasoning that the articles were not "worked" for purposes of Chapter 70, HTSUSA, we concluded in HQ 964879 that the "cane" was classified under subheading 7002.20.10, HTSUSA, set forth below.
The comment in favor of the proposed actions expressed agreement with "the conclusions in the proposed revocation ruling that sintering of the silica soot is an essential process in the manufacture" of the subject goods and that "sintering is not working' of a previously existing product." The commenter opines that "working of glass contemplates the mechanical or physical alteration of glass following the annealing stage," and that the, preforms are properly classified as proposed, eo nomine as glass rods under heading 7002, HTSUS.
You provided extensive comments in opposition to the proposed actions. In sum, your opposition to the proposed actions contends that the glass preforms at issue, because of their method of manufacture and complexity, cannot be classified under heading 7002, HTSUS, and instead should remain classified under heading 7020, HTSUS. We summarize your comments concerning the proposed revocation and modification as follows:
1. You repeatedly emphasize that HQ 960948, which revoked NY B85983 (that classified preforms under 7002, HTSUS), "was issued after notice and comment by interested parties, and after thorough consideration by CBP of all facets of the classification issues presented."
2. Your basic premise for opposing the proposed actions is that there is inadequate justification for classification of the preforms under heading 7002 and that "the entire record before CBP confirms that optical fiber preforms cannot fit under the provisions of [heading] 7002 [, HTSUS]."
3. The crux of your opposition is embodied by your description of the manufacturing process of preforms: "the manufacturing technology employed in the production process of preforms is such that sequential processes are followed, and these processes involve first the production of a glass rod -- the core rod also known as "cane" or "seed"."
4. You contend that "subsequent to the creation of the core rod, the rod is "worked" by adding to it a measured quantity of cladding glass (of a different refractive index." You continue that "the central issue here is whether a core rod is created, and then a preform is obtained by processes which may be understood to constitute a working of that core rod."
5; You contend that our conclusions that the final step of the preform manufacturing process occurs when the cladded layer is sintered (as part of the one of the vapor deposition processes) onto the core rod (or "cane" in your parlance) to create the preform are neither conclusive nor even relevant "to whether a core rod is being worked to yield a preform."
6. You frame the ultimate issues to be these: "Does a glass rod exist when the core rod is formed? If so, is that rod subjected to any process of "working" to yield the imported article, the optical fiber preform?" Restated following your examination of various industry references to the articles at issue, you contend that "the issue turns on whether the addition of a glass cladding layer to that core rod constitutes the working of the core rod, such that the end result (the optical fiber preform) is comprised of a worked rod, thereby foreclosing classification under heading 7002."
7. You advocate that the proposed modification of HQ 964879 contains statements that have no basis in law or fact and, further, that the determinations made therein are unsustainable and unjustified. You further advocate that our discussion of HQ 960274 (set forth below) evinces our misinterpretation of the headings, legal notes and explanatory notes to Chapter 70, HTSUS.
8. You elaborate in furtherance of your arguments concerning working of the core rods ("cane" in your parlance) "to the extent that CBP would analogize "annealing" with "sintering" or "consolidation", it also follows that, under Blakley Corp. v. United States, 22 CIT 635, 15 F. Supp. 2d 865 (1998), a disqualifying "working" of the rod cannot be viewed only with respect to operations subsequent to the sintering of the cladding soots."
9. You contend, via a discussion of various methods of working glass in Chapter 70 and the ENs thereto, that the addition of glass by means of vapor chemical deposition also constitutes "working" and thus, you conclude, the preforms fall to be classified under heading 7020, HTSUS.
10. We set forth other contentions in our discussion of your comments below.
Whether the subject merchandise is classifiable under heading 7002, HTSUS, which provides for, inter alia, unworked glass rods, or heading 7020, HTSUS, which provides for other articles of glass.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation ("GRIs"). GRI1 states, in part that for legal purposes, classification shall be determined 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. GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.
The HTSUS provisions under consideration are as follows:
7002 Glass in balls (other than microspheres of heading 7018), rods or tubes, unworked:
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7002.20.10. Of fused quartz or other fused silica.
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7020 Other articles of glass:
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Preliminarily, it is necessary to discuss the nature and function of optical fibers that the preforms are designed and used ultimately to produce. The form and function of the optical fibers that are drawn through a highly technical process from the preforms at issue influenced the classification determinations at issue. See the website howstuffworks.com, under the title "How Fiber Optics Work" wherein the form and function of optical fibers is described as follows:
The light in a fiber-optic cable travels through the core (hallway) by constantly bouncing from the cladding (mirror-lined walls), a principle called total internal reflection. Because the cladding does not absorb any light from the core, the light wave can travel great distances.
[SEE FIGURE IN ORIGINAL]
Fiber optics (optical fibers) are long, thin strands of very pure glass about the diameter of a human hair. They are arranged in bundles called optical cables and used to transmit light signals over long distances.
[SEE FIGURE IN ORIGINAL]
If you look closely at a single optical fiber, you will see that it has the following parts:
Core -- Thin glass center of the fiber where the light travels
Cladding -- Outer optical material surrounding the core that reflects the light back into the core
Buffer coating -- Plastic coating that protects the fiber from damage and moisture
From this and other industry sources we conclude that the essential components of optical fibers are the core and cladding. That is, optical fiber cannot fulfill its intended function of transmitting light signals over long distances without the core being enclosed in a cladding layer that causes the light signal to remain concentrated for transmission through the core. It was with these factual predicates that we proposed modifying HQ 964879 relating to glass rod preforms. Both the relevant chapters and headings in the HTSUSA and the relevant CBP rulings acknowledge these forms and functions; we reexamined our classification of the preforms and their method of manufacture and decided to modify CBP's classification of the preforms.
The instant modification is based on the following analysis: preforms, upon importation, are glass rods of various sizes and dimensions that are composed of fused silica. While we readily acknowledge that the glass preforms are highly specialized and produced via a sophisticated method of manufacture, they are, being composed of fused silica and presented for importation in the form of a rod, prima facie classifiable within Chapter 70 as articles of glass and within Chapter 70 under heading 7002, HTSUSA, as glass rods. Heading 7020, HTSUSA, which provides for other articles of glass, is a so-called "basket" provision within Chapter 70, in which classification "is appropriate only when there is no tariff category that covers the merchandise more specifically." (Apex Universal, Inc., v. United States, 22 C.I.T. 465 (CIT 1998)). Therefore, in reexamining the classification of the preforms, we first addressed the competing provisions within the tariff. Only if classification under heading 7002, HTSUSA were precluded would we have addressed classification under heading 7020, HTSUSA.
We note with regard to your repeated contentions opposing the proposed modification of HQ 960948, which revoked NY B85983 (that classified preforms under 7002, HTSUS), that HQ 960948 "was issued after notice and comment by interested parties, and after thorough consideration by CBP of all facets of the classification issues presented. We note further in response to your statement that three comments from the industry were received during the notice and comment period preceding the issuance of HQ 960948 and that, two of those comments, yourself and another prominent company, are the commenters regarding the instant action.
CBP's classification of glass preforms has focused on the notes to Chapter 70 regarding whether, in the creation of the glass preforms, the articles are "worked" for tariff purposes. See HQ 964879, dated March 21, 2002: See also HQ 560660, dated April 9, 1999 and HQ 561774 dated January 29, 2001 (wherein Customs analyzed the optical fiber production process involving the articles in question vis-a-vis country of origin and substantial transformation determinations).
In HQ 960948, we stated in regard to the manufacture of preforms "a rod of the core soots [microscopic glass particles] is created in the first step of manufacture [emphasis added] [and] that rod is then "worked" by the addition to it of cladding soots that are fused onto it." We now believe this is in error and this process is not "working" for tariff purposes. The preforms result from a two-part process of manufacture that results in a glass rod for tariff classification purposes. As we stated in HQ 561774, supra, the manufacturing process for preforms can be described as follows:
The fiber core is manufactured first by depositing layer after layer of microscopic glass particles called "soot" onto a ceramic target (bait) rod. This soot is a combination of both pure silica and an additive, Germania. The soot is formed by burning the appropriate chemical vapors in a gas flame. Once the core material is deposited, a layer of cladding material (pure silica) is added. This small amount of cladding material, upon consolidation, protects the core region from mechanical damage such as nicks and scratches, and from chemical contamination. The resulting object is a cylindrical porous structure with a chalky consistency called a "core preform." Once the deposition process is completed, the bait rod is removed and the core preform is placed in an oven for consolidation. This process causes the chalky core preform to become both smaller and denser, and to become clear.
Additional cladding is added during the second stage of the manufacturing process, resulting in a completed preform.
While we acknowledged that the preforms are articles that result from a unique process of manufacture (i.e., chemical vapor deposition), we did not distinguish between drawing and sintering in the manufacturing process. Generally speaking, "drawing" is a process in glass production in which molten or heated glass is shaped by pressing or drawing through rollers or other apparatus. The term "sinter" is defined as causing to become a coherent mass by heating without melting. Webster's New Collegiate Dictionary, G & C Merriam Co., 1979, p. 1076. "Sintering" generally describes the process through which pure chemicals are accumulated and heated to remove impurities and form glass, such as the vapor axial deposition process, which is described at length in both HQ 960948 and HQ 964879 cited above.
You contend, concerning working of the core rods ("cane" in your parlance), that "to the extent that CBP would analogize "annealing" with "sintering" or "consolidation", it also follows that, under Blakley, supra, a disqualifying "working" of the rod cannot be viewed only with respect to operations subsequent to the sintering of the cladding soots."
Our analogizing of "annealing" with "sintering" or "consolidation" was undertaken with regard to steps in the various processes of manufacture rather than as physical manipulation of glass during manufacture. Our intent was to demonstrate our interpretation of the language of the tariff that distinguishes among the various types of "working" to which glass is subjected and compare those forms of working to the sequential or multi-step process of manufacture of the preforms.
Your fundamental position, i.e., that the core or cane is further worked to .create the preforms ignores both the necessary characteristics of optical fiber and the "sequential" (see your opposition at pages 5, 6, 10) or multistepped manufacturing process. Your position that the core is worked further ignores the basic function of the ultimate product: the core of the optical fiber cannot transmit light signals as intended without the cladding layer to reflect the signals within the core. That is, a preform is not complete unless and until the cladding is sintered to the core.
The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs and Border Protection ("CBP") believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).
The ENs to heading 7002, HTSUS, provide, in pertinent part, that:
This heading covers . . . glass rods and tubing of various diameters, which are generally obtained by drawing (combined with blowing in the case of tubing); they may be used for many purposes (e.g., for chemical or industrial apparatus; in the textile industry; for further manufacture into thermometers, ampoules, electric or electronic bulbs and valves, or ornaments)[emphasis added].
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Balls of this heading must be unworked; similarly rod and tubing must be unworked (i.e., as obtained direct from the drawing process or merely cut into lengths the ends of which may have been simply smoothed).
The heading excludes balls, rod and tubing made into finished articles or parts of finished articles recognisable as such; these are classified under the appropriate heading (e.g., heading 70.11, 70.17 or 7018, or Chapter 90). If worked, but not recognisable as being intended for a particular purpose, they fall in heading 70.20.
CBP has considered the concept of the working of glass in several rulings and has uniformly considered the process to have been performed on an extant article of glass, rather than during the process of creation or manufacture. In HQ 960274, dated October 9, 1997, we stated:
Chapter 70, Note 2(a), authorizes, but does not identify, processes to which glass can be subjected before the annealing stage that will not exclude it from heading 7003. However, certain ENs include within heading 7006, glass of heading' 7003 that is edge-worked or otherwise worked, and list as examples glass that has been ground, polished, rounded, notched, chamfered, beveled, profiled, etc. In our opinion, to accord proper deference to the mandate of Note 2(a), the polishing or rounding operations listed in the heading 7006 ENs, must be limited to those which occur after the annealing stage.
You contend that our inclusion of the language immediately above in the proposed modification ignores the edicts of Blakley. To the contrary, we discussed Blakley at length in HQ 964879 and are aware of its effect. As with the analogy of sintering and annealing discussed above, we cited the ruling and types of working set forth therein only as examples of types of working to which articles of glass can possibly be subjected and considered at what point in the creation or existence of the articles (prior to, during or subsequent to manufacture) the acts of working took place. Based on our reexamination of the language above from the relevant rulings, Chapter 70, the relevant headings and ENs, we conclude that working of glass contemplates the mechanical or physical alteration of glass following the annealing, or in this matter, its equivalent stage. That is, the "working" of glass articles occurs after their creation. The manufacture of preforms is a process that requires multiple steps; the articles are not complete until the desired cladding layer(s) are created and the articles are sintered to form a pure, solid whole. Thus, we no longer consider the creation of preforms to be "working" for tariff purposes because the products are being formed into a glass rod from raw material during the vapor deposition process. This interpretation comports with the ENs to heading 7002, HTSUS.
Both the "cane" and the preforms, composed of pure silica, are essentially components of the same product -- the precursor to optical fiber. We consider our distinction between "cane" and "preforms" to have been overstated; the distinction appears to be unique to you and your client and commercially there appears to be no distinction made between preforms in various stages of manufacture. We no longer distinguish between "cane" and preforms for tariff classification purposes.
The General ENs to Chapter 70 list nine separate methods of glass manufacturing processes (casting, rolling, floating, moulding, blowing, drawing or extruding, pressing, lampworking, and cutting out) which "vary considerably." None of these exemplars remotely describes or includes the vapor axial deposition process. To hold that the term "glass rod" is restricted to the traditional concept of ordinary glass produced via conventional means is to ignore an important function of the tariff schedule, namely, to provide eo nomine classification for most of the articles in international trade. HQ 086626, dated January 15, 1991. "Tariff provisions should be open to the invention of new and different products." Id. "Congress could not have intended to foreclose future innovations in [goods] from classification under the [eo nomine] provisions." Simmon Omega, Inc. v. United States, 83 Cust.Ct. 14, C.D. 4815 (1979). "To hold otherwise would result in the classification of any and every new product in the basket provisions of the nomenclature." HQ 086626 as quoted in HQ 964985, dated July 15, 2002. Although the preforms are not drawn, they are produced by vapor axial deposition and composed of silica. Nothing in either heading 7002 or the related legal or explanatory notes restricts classification thereunder to products that result from a one-step process of manufacture. We conclude that the subject preforms are rods of glass for classification purposes.
The record reflects that sintering of the silica soot is an essential process in the manufacture" of the subject goods and that "sintering is not working' of a previously existing product." The working of glass contemplates the mechanical or physical alteration of glass, following the annealing stage. This warrants the conclusion that the preforms are properly classified, eo nomine, as glass rods under heading 7002, HTSUS.
You oppose the proposed modification of HQ 964879 on the basis that the glass preforms-at issue, because of their method of manufacture and complexity, cannot be classified under heading 7002, HTSUS, and instead should remain classified under heading 7020, HTSUS. This argument simply does not recognize the rationale adopted in the proposed ruling: a preform is manufactured via a multi-step process that yields an admittedly complex precursor that will, following importation, and being subjected to a highly technical manufacturing process, yield kilometers of optical fiber. At GRI 1, the preforms are glass rods. We have painstakingly considered the arguments made in opposition to the proposed action; nevertheless, we remain convinced that the preforms created by any of the vapor deposition processes should be, in their condition as imported, classified as glass rods under heading 7002, HTSUS.
The glass rods/preforms produced via vapor deposition and used to create optical fiber are classifiable as unworked glass in rods under subheading 7002.20.1000, HTSUSA.
EFFECT ON OTHER RULINGS:
HQ 964879 is modified as described above but the classification determination made therein remains unchanged. In accordance with 19 U.S.C. § 1625 (c)(2), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Gail A. Hamill for
Myles B. Harmon, Director Commercial and Trade Facilitation Division