CLA-2 RR:CR:GC 964879 AML
Mr. Frederick L. Ikenson
Mr. Larry Hampel
Frederick L. Ikenson, P.C.
1621 New Hampshire Avenue, N.W.
Washington, D.C. 20009-2584
RE: Glass rod used to create optic fibers
Dear Messrs. Ikenson and Hampel:
This is in reference to your letter to the National Commodity Specialist Division, New York, dated March 8, 2001, on behalf of Corning, Inc., regarding the tariff classification of certain glass rod under the Harmonized Tariff Schedule of the United States (HTSUS). As you know, the request, together with a sample, was forwarded to this office for reply. In preparing this ruling, consideration was given to a supplemental submission from Corning Inc., dated March 13, 2002, clarifying the manufacturing process.
FACTS:
The articles under consideration are glass rods to be used to create optic fibers, and are described as follows:
The product is a particular type of glass rod that is known in the optical fiber production sector as “cane”. Cane – which is drawn from a consolidated “core preform” – is used by the importer for the production in the United States of glass products known as optical fiber preforms. Optical fiber preforms are subsequently drawn into glass optical fiber.
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“Cane” is that drawn rod of core glass that emerges from the first step of the optical fiber preform production process described in HQ
960948 (infra). When the core soots are deposited on the bait rod (followed by some amount of cladding soot), the bait rod is removed, the soot “blank” is sintered or consolidated in a furnace (into core
preform), and cane is drawn from the core preform and cut to rod lengths for use in the subsequent step (where the amount of cladding actually required to produce an optical fiber preform is added).
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.
This clear glass core preform is then lowered into a furnace and drawn into a glass rod of smaller diameter and longer length. The resulting rod is called a cane. It is cut to convenient lengths and can be stored for later use on site, or it can be transferred between locations.
On March 13, 2002, you provided a supplemental submission that elaborated upon the manufacturing process. It provides, in pertinent part, as follows:
With respect to your request for clarification regarding the application of silica cladding material to the glass rod forming optical fiber cane:
Optical fiber, in the simplest of terms, is comprised of two primary glass constituents – the core and the cladding. The first stage in the manufacture of the optical fiber is the formation of the core. In a typical two-stage manufacturing process, a core preform is formed by chemical vapor deposition, consolidated into a clear glass preform, and drawn into glass rod approximately 1.25 centimeters (cm) in diameter. This rod, when cut to length, is referred to as “cane” and serves as the starting member for the subsequent deposition of cladding glass. When the cladding deposition is completed and the overclad cane is consolidated, the resulting optical fiber preform can be drawn into optical fiber.
The core of an optical fiber serves as the light-guiding structure. Consequently, proper attributes, values, and tolerances for the core are critical. Moreover, core glass may be stored for prolonged periods of time before final deposition of cladding. To ensure proper operation of an optical fiber manufactured from a starting core, a small amount of cladding material is deposited during initial formation of the core preform. The core rod, having a thin layer of cladding glass, constitutes cane [emphasis in original].
The initial layer of cladding serves dual protective purposes. Most importantly, it provides a degree of mechanical protection and continuity, preventing surface defects at the critical core surface that could interfere with the performance of fiber made from such cane. This initial cladding layer on the core also affords a level of protection against various chemical species that are known to affect optical fiber performance[.]
The Headquarters Customs Laboratories and Scientific Services (“CLSS”) offered the following guidance:
With regard to the Corning “cane” glass fiber, the product is basically a drawn rod of core glass (with a small amount of cladding applied) that emerges from the first step of the optical fiber preform production process. Corning indicates that the cladding applied is equivalent to approximately [a very small percentage] of the total cladding that will be required to when the optical fiber preform is produced and is applied for mechanical protection and chemical resistance.
The opinion of CLSS concluded with the observation that “the minimal amount of cladding that is applied to the core does not constitute a “worked” product.”
ISSUE:
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 Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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.
The HTSUS provisions under consideration are as follows:
7002.20.10 Glass in balls (other than microspheres of heading 7018), rods or tubes,
unworked: ... Rods: Of fused quartz or other fused silica.
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7020.00.60 Other articles of glass: ... Other.
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 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 cane has the shape of a rod (see Webster’s New World Dictionary (3rd Coll. Ed. 1988) which defines “rod” as "any straight, or almost straight, stick, shaft, bar, staff, etc., of wood, metal, or other material[.]"). To be classifiable as glass in rods in subheading 7002.20.10, the preforms must be "unworked."
Note 2(a), Chapter 70, HTSUS, provides that:
For the purposes of headings 7003, 7004 and 7005 ... [g]lass is not regarded as "worked" by reason of any process it has undergone before annealing[.]
As for the issue of whether this definition applies to heading 7002, the Court in Blakley Corp. v. United States, CIT Slip Op. 98-94 (CUSTOMS BULLETIN, July 29, 1998, vol. 32, no. 30, 45), considered a similar issue (whether the definition of the term "slab" in Additional U.S. Note 1 of Chapter 68, HTSUS, applies throughout Chapter 68 or only for purposes of heading 6802, as provided in the Note). The Court stated that "Congress’ intent to limit the descriptions contained in Notes 1 and 2 [defining "tiles" for purposes of heading 6810] could scarcely be made more clear" (CUSTOMS BULLETIN, July 29, 1998, vol. 32, no. 30, at 50). Similarly, in this case, Congress’ intent to limit the description contained in Note 2(a) to the named headings (not including heading 7002) could scarcely be made clearer. The limitation of "worked" in Note 2(a), Chapter 70, HTSUS, is inapplicable to heading 7002, HTSUS.
The ENs to heading 7002, HTSUS, provide, in pertinent part, that:
This heading covers ... [g]lass 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 may 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). Certain tubes for fluorescent lighting (used mainly for advertising purposes) are drawn with partitions running through the length.
* * *
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.
This heading includes tubes (whether or not cut to length) of glass which has had fluorescent material added to it in the mass. On the other hand, tubes coated inside with fluorescent material, whether or not otherwise worked, are excluded (heading 70.11).
Basically, the cane under consideration is manufactured by depositing a powder or soot on a "target" glass rod. The column is drawn through a furnace, resulting in a rod of fused silica dioxide and the additional chemicals and the release of the chlorine gas. Onto this rod is deposited powder or soot of silica dioxide which is fused on the outside of the core rod. The "target" rod is removed and the result is a solid rod of silica glass consisting of a core and cladding, each of different materials and with a different refractive index. This solid rod may be flame polished to achieve a smooth surface.
In your original submission, you state that the rod in question contains a small amount of cladding that serves as a protective layer for the cane during shipment and storage. This is reiterated in the supplemental submission and is verified in the opinion of the Customs Laboratory.
Headquarters Ruling Letter (HQ) 960948, dated September 11, 1998, addresses Customs position on the classification of “preforms” that are derived from the cane/glass rods under consideration. 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-à-vis country of origin and substantial transformation determinations). In HQ 960948, the preforms that are manufactured from the cane were classified under heading 7020, HTSUS, as other articles of glass. In HQ 960948, we reasoned that the “preforms” were “further worked” as interpreted by United States Court of International Trade in Winter-Wolff, Inc., v. United States, 996 F. Supp.1258, 1264 (1998). There, the CIT determined, based upon common meaning gleaned from dictionary definitions, that the definition of “further worked”, for purposes of classification within the HTSUS, “amounts to the following: to form, fashion, or shape an existing product to a greater extent.” Id.
In HQ 960948 we stated in regard to the preforms that are derived from the cane at issue that:
The preforms are not "unworked", as that term is defined in EN 70.02. That is, discounting "work" on the "target" rod which is removed from the preform and is not imported, according to the importer’s description, a rod of the core soots is created in the first step of manufacture [emphasis added]. That rod is then "worked" by the addition to it of cladding soots that are fused onto it. These cladding soots make up a layer of glass over the core rod that has different characteristics than the core rod. The core rod with cladding is then further "worked" by the removal of the "target" rod. Clearly, the preform is not "as obtained directly from the drawing process" (EN 70.02, above). The cane is an article obtained directly from a simple manufacturing process, as described in EN 70.02 (e.g., moulding, pressing, drawing, blowing) [emphasis added]. Optical fiber is obtained from a complex manufacturing process in which the cane - a rod - is first created and then "worked" (in this regard, see, e.g., the distinction in the EN between tubes of glass which have had fluorescent material added to in the mass, included in heading 7002, and tubes coated inside with fluorescent material, excluded from heading 7002).
In HQ 561774, we summarized the production process of the cane as follows:
You state that Corning’s production of optical fiber preforms can be accomplished by either a two-step process or a continuous, single step process. The two-step process in this case is as follows:
A) Production of Cane
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.
This clear glass core preform is then lowered into a furnace and drawn into a glass rod of smaller diameter and longer length. The resulting rod is called a cane. It is cut to convenient lengths and can be stored for later use on site, or it can be transferred between locations.
We conclude, in accordance with HQs 960948 and 561774, that the articles in question are “unworked” (and are not “further worked”) as required by heading 7002, HTSUS, and the ENs thereto.
This interpretation of the term "unworked" in heading 7002 is consistent with the general treatment of merchandise in different stages of manufacture (see Ruth Sturm, Customs Law & Administration, 3rd ed. (1993), §54.3, "[t]here is often a progression of increasing duties from the raw material through various intermediate stages to the article manufactured from the original material"; see also, Ugg International, Inc. v. United States, 17 CIT 79, 85-86, 813 F. Supp. 848 (1993)).
The critical aspect of the analysis is that the cane results from being drawn into the shape of a rod. Any “working” of the cane precedes its being created or manufactured. The drawn rod constitutes the initial phase of the optical fiber manufacturing process. In accordance with the ENs to heading 7002, HTSUS, we find that the cane constitutes “glass rod . . . which [is] generally obtained by drawing[.]” “ . . . [S]imilarly 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)[emphasis added].” See the ENs to heading 7002, HTSUS, supra.
HOLDING:
The glass cane used to create optical fiber is classifiable as unworked glass in rods under subheading 7002.20.10, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division