CLA-2 RR:CR:GC 966619 JAS
Port Director, U.S. Customs and Border Protection
605 W. 4th. Ave., Rm. 203
Anchorage, AK 99501
RE: Protest 3196-02-100014; Optical Fiber Cable Assemblies; Individually
Sheathed Optical Fibers With and Without Outer Jackets or Strength
Members
Dear Port Director:
This is our decision on Protest 3196-02-100014, filed by counsel on behalf of Sumitomo Electric Lightwave Corp., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of optical fiber cable assemblies. The entries under protest were liquidated on April 26, 2002, and this protest timely filed on July 25, 2002.
Additional facts and legal arguments were presented by counsel in a memorandum which accompanied this protest and application for further review. Eleven (11) individual samples of cable assemblies representative of the protested merchandise were also submitted.
FACTS:
The merchandise at issue, referred to as cable assemblies, consists of one or more optical fibers, individually coated or sheathed in two layers of acrylate or thermoplastic, some with outer jackets or strengthening members and some without. Counsel refers to the goods as tight or loose tube buffered cable and as ribbon cable. In addition to the thermoplastic coating on each fiber, both types are said to have an additional buffer or jacket, which is an acrylic polymer coating applied in a process which is separate from the application of the initial fiber sheathing. This additional coating is typically 300 microns thick for the ribbon cable and 900 microns thick for the buffered cables. The assemblies may
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have connectors on one or both ends and are used in the telecommunications industry for transmitting light signals representing encoded electrical signals that include video, audio or data information.
Counsel for the protestant maintains that these cable assemblies are provided for in heading 8544, HTSUS, as optical fiber cables made up of individually sheathed fibers. Alternatively, classification is proposed in heading 9013, HTSUS, as other optical devices, although counsel concedes the articles are clearly not optical fibers. Based on information and belief that the articles were individually sheathed optical fibers or optical fiber bundles, but not optical fiber cables, the entries were liquidated in a provision of heading 9001, HTSUS, as optical fibers and optical fiber bundles.
The HTSUS provisions under consideration are as follows:
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:
ISSUE:
Whether the assemblies under protest, or any of them, constitute cable for tariff purposes.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (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. GRI 3(b) states, in part, that
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composite goods made up of different components each of which is described in its own heading shall be classified as if consisting of the component which imparts the essential character to the good. GRI 3(c) states that goods not classifiable under Rule 3(b) shall be classified in the heading which occurs last in numerical order among those which equally merit consideration.
Counsel makes the following arguments in support of classification in heading 8544: (1) because of their manner of construction the cable assemblies are within the common and commercial meaning of the term cable(s) for purposes of heading 8544, (2) tight buffer construction is defined in the fiber optic industry as a type of cable construction whereby each glass fiber is tightly buffered by protective thermoplastic coating to a diameter of 900 microns; (3) the so-called ribbon cable consists of optical fibers which, in addition to being individually sheathed in thermoplastic to a diameter of 250 microns, has additional buffering applied on each side of the ribbon which increases the thickness to 305 microns, thereby imparting stiffness, durability and strength, thus creating a ribbon cable; (4) finally, subheading 9001.10.00, the liquidated provision, does not cover articles such as the ones at issue fitted with connectors.
Heading 9001, HTSUS, covers optical fibers and optical fiber bundles, and optical fiber cables other than those of heading 8544. Section XVIII, Chapter 90, Note 1(h), HTSUS, excludes optical fiber cables of heading 8544. Thus, before addressing the applicability of subheading 9001.10.00, HTSUS, we must first determine whether these goods qualify as optical fiber cables for purposes of heading 8544, HTSUS. Initially, both single and multiple strand optical fibers, individually sheathed, may constitute cables for tariff purposes, if otherwise qualified. See HQ 964883, dated September 14, 2001. Further, the terms cable, cabling or some derivative of those terms are not defined in the legal notes of the HTSUS, nor are the terms discussed in any relevant EN. Such terms, therefore, are to be construed in accordance with their common and commercial meanings which are presumed to be the same.
The common and commercial meaning of the term “cable” is reflected in the fiber optic industry’s Fiber Optic Reference Guide, David R. Goff, Focal Press (1996), at p. 153, in which the term “cable,” in reference to optical fiber cable, is defined 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.” Citing to this authority, HQ 964883, supra, concluded at p. 4 “…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 [Explanatory Notes] support this conclusion.”
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Normally, so-called loose tube and tight buffered 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. Such coated fibers may then be formed into cables. See HQ 965593, dated July 16, 2003. It is clear, then, that the dual acrylate or thermoplastic coating, even to a thickness of 900 microns, is not sufficient to create a cable. Additional materials, such as strengthening or protective members or jacketing are required. Buffers that are protective coatings applied directly to the fibers would not constitute such materials. Buffered fibers must be further protected by some sort of strength members and/or jackets to qualify as cable.
Samples serve as compelling evidence in identifying merchandise, and can even negate a different characterization of the goods. Gamble & Vargish Co., v. United States, 64 Cust. Ct. 568, C.D. 4037 (1970). Likewise, it is well settled that methods of weighing, measuring and testing merchandise used by Customs officers are presumed to be correct, and may not be disregarded, except in cases where such methods and results are shown to be erroneous. Consolidated Cork Corp. v. United States,
54 Cust. Ct. 83, C.D. 2512 (1965), and Customs Directive 099 3820-002, dated May 4, 1992. See HQ 959352, dated December 4, 1996. Therefore, it is the samples, together with the laboratory reports, which serve as the basis for our decision in this case.
The eleven (11) samples which Customs examined, and which are representative of the merchandise at issue, are identified as follows, each with its corresponding San Francisco laboratory report number, all dated from October 16 through and including October 31, 2002: 12 count ribbon SF20021047, ribbon fiber…048, cable assembly…049, fan out or cable assembly…050, fiber channel fiber array…051, fan out ribbon furcation…052, cable assembly…053, 900u fiber…054,
cable assembly LX-900U…055, ribbon furcation cord…056, and fan out…057. A comparison of the submitted samples with their corresponding laboratory reports
indicates that the following samples, identified by lab report number, constitute one or
more individually sheathed optical fibers but, because they do not possess additional protective materials, strengtheners or jacketing, are not cables: …047, …048, …049, …051,…053, …054, …055, and…057. These are provided for in heading 9001, HTSUS.
The sample fan out ribbon furcation,…052, consists of a section of individually sheathed optical fibers and a section of optical fiber ribbon cable, the latter evidenced by numerous yellowish aramid-type Kevlar manmade fibers for additional strength and
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protection. This is a composite good described in part by heading 8544 and in part by heading 9001. We are unable to readily identify an essential character for this good under GRI 3(b), HTSUS. Under GRI 3(c), therefore, this sample is provided for in heading 9001, HTSUS. The 9001 ENs make it clear that optical fiber cables remain in that heading even if fitted with connectors.
The samples identified as fan out or cable assembly, …050, and ribbon furcation cord, …056, are optical fiber cables because they consist of individually sheathed optical fibers protected by the aramid-type manmade fibers described above, and are further jacketed in thermoplastic. These are provided for in heading 8544, HTSUS.
HOLDING:
Under the authority of GRI 1, merchandise represented by the samples identified in San Francisco laboratory reports SF20021047, …048, …049, …051, …052, …053, …054, …055, and …057 are provided for in heading 9001. They are classifiable in subheading 9001.10.00, HTSUS. Merchandise represented by the samples identified in San Francisco laboratory reports SF20021050 and …056 are provided for in heading 8544. They are classifiable in subheading 8544.70.00, HTSUS.
The protest should be DENIED except to the extent that reclassification of the merchandise as indicated above results in a partial allowance. 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 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.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division