CLA-2 RR:CTF:TCM 967058 AML
Ms. Mary E. Gill
Lucent Technologies
Guilford Center 1 – 3A10
5420 Millstream Road
Greensboro, NC 27420
Re: Glass preforms used to create optical fibers; HQ 960948 revoked
Dear Ms. Gill:
This is in reference to Headquarters Ruling Letter ("HQ") 960948 issued to you on September 11, 1998, behalf of Lucent Technologies, Inc., regarding the classification of certain glass preforms under the Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"). We have taken the opportunity to revisit the decision made in HQ 960948, as well as the rationale of that decision, and have determined that the conclusions reached therein are incorrect. This letter sets forth the correct classification of the glass preforms.
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 revocation was published on November 2, 2005, in Vol. 39, No. 45 of the Customs Bulletin. Two comments were received in response to the notice. Your comment favored the revocation of HQ 960948 while the other comment opposed the revocation.
FACTS:
The glass preforms and their method of manufacture were described extensively in HQ 960948. The description of the manufacturing process described in HQ 960948 is incorporated by reference. In simplest terms, silica dioxide powder is deposited or accumulated and then sintered (defined below) to form a layered glass rod which, following importation, will be subjected to an intricate process to produce kilometers of hair-like optical fiber. Based on the fact that the preforms at issue were created through a two-step process and reasoning that the articles were "further worked" for purposes of Chapter 70 of the HTSUS, we concluded in HQ 960948 that the preforms were classified under subheading 7020.00.60, HTSUS, which provides for other articles of glass, other.
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 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 Glass in balls (other than microspheres of heading 7018), rods or tubes, unworked:
7002.20 -- Rods:
7002.20.10 Of fused quartz or other fused silica.
* * *
7020 Other articles of glass:
* * *
7020.00.60 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 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).
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.
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 essentially agree that sintering of silica soot is an essential process in the manufacture of rods of fused silica, and that sintering is not "working" of a previously existing product. You also agree that heading 7002, HTSUS, provides an eo nominee description for the product. 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 at p. 1015, 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. (Emphasis added). 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.
We conclude based on our reexamination of the language above from Chapter 70, the relevant headings and ENs, that working of glass contemplates the mechanical or physical alteration of glass following the annealing 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 layers 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.
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].
***
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.
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.
HOLDING:
The glass rods/preforms produced via vapor axial deposition are classified as unworked glass in rods under subheading 7002.20.1000, HTSUSA.
EFFECT ON OTHER RULINGS:
HQ 960948 is revoked. 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.
Sincerely,
Gail A. Hamill for
Myles B. Harmon, Director Commercial and Trade Facilitation Division