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HQ 966631




February 25, 2004

CLA-2 RR:CR:GC 966631 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9001.10.00

Mr. Robert Resetar
Customs Manager
Porsche Cars North America, Inc.
980 Hammond Drive, Suite 1000
Atlanta, GA 30328

RE: Optical fiber harness made in Slovakia; NY J86366 Affirmed

Dear Mr. Resetar:

In a letter dated August 22, 2003, you request reconsideration of New York Ruling Letter (NY) J86366, which the Director, National Commodity Specialist Division, New York, issued to you on July 7, 2003. The issue is the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of an optical fiber harness. A sample harness was submitted. We have reviewed NY J86366 and determined that the classification is correct for the reasons set forth below.

FACTS:

In NY J86366, we classified the goods under subheading 9001.10.00, HTSUS, which provides for optical fibers. We described the harness as follows:

The submitted item is identified in your letter as an Optical Fiber Harness, style number 151. The Optical Fiber Harness is described as a plastic optical, double-stranded harness. The item measures approximately 151 inches in length, with a double connector at one end and two single connectors on the other end. Midway through the length of the harness, one of the strands splits off to a second double connector. The length of the split off is approximately 25 inches in length. You have indicated that the function of this Optical Fiber Harness is to form a connection between the sound system, onboard phone and the Porsche Communications Management System

You argue that the optical fiber harness is classifiable under subheading 8544.70.00, HTSUS, as fiber optic cable. You argue that the submitted sample shows an optical fiber sheathed in a thin black plastic strengthener, which is covered in an orange plastic jacket.

ISSUES:

Whether the instant harness is classified under heading 8544, HTSUS, as “optical fiber cables, made up of individually sheathed fibers. . .,” or under heading 9001, HTSUS, as “[o]ptical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544. . . .”

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8544 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: 8544.70.00 Optical fiber cables

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: 9001.10.00 Optical fibers, optical fiber bundles and cables

You argue that the instant article is similar to the patchcord in Headquarters Ruling Letter (HQ) 964996, dated December 5, 2001, which was classified under subheading 8544.70.00, HTSUS. As a result, you argue that the instant optical fiber harness should also be classified under subheading 8544.70.00, HTSUS.

EN 85.44 states that the heading covers, in relevant part:

[o]ptical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors. The sheaths are usually of different colours to permit identification of the fibres at both ends of the cable. . . .

Heading 9001, HTSUS, covers among other things, “optical fibers and optical fiber bundles: optical fiber cables other than those of heading 8544.” Chapter 90, Note 1(h), HTSUS, states, in pertinent part, that “optical fiber cables of heading 8544” are not covered in Chapter 90. Additionally, EN 90.01, states in pertinent part:

Optical fibres consist of concentric layers of glass or plastics of different refractive indices. Those drawn from glass have a very thin coating of plastics, invisible to the naked eye, which renders the fibres less prone to fracture. Optical fibres are usually presented on reels and may be several kilometers in length. They are used to make optical fibre bundles and optical fibre cables.

Optical fibre bundles may be rigid, in which case the fibres are agglomerated by a binder along their full length, or they may be flexible, in which case they are bound only at their ends. . . .

Optical fibre cables of this heading (which may be fitted with connectors) consist of a sheath containing one or more optical fibre bundles, the fibres of which are not individually sheathed [emphasis in original].

The legal notes and heading texts, as well as the ENs, for chapter 85, and heading 8544, HTSUS, do not provide a definition of the term “optical fiber cable.” In the absence of such guidance, tariff terms may be construed in accordance with their common and commercial meanings. 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. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

In HQ 964996, Customs determined that patchcords of sufficient construction and containing a single optical fiber, constitute an optical fiber cable falling in heading 8544, HTSUS. Customs found that under its common and commercial definition an optical fiber cable must consist of one or more optical fibers and additional materials, including buffers, strengthening members, and jackets for protection. One patchcord in HQ 964996 consisted of special buffered optical fiber, aramid yarn strengtheners and an additional, thicker external jacket; as it was individually sheathed, it fell under heading 8544, HTSUS. Customs determined that another patchcord, as it lacked additional buffers and strengthening material, failed to meet the common and commercial definition of optical fiber cable, and, as a consequence, was not classified under subheading 8544.70.00, HTSUS. Instead, the other patchcord was classified as an optical fiber under subheading 9001.10.00, HTSUS. See also HQ 964883, dated September 14, 2001 (concluding that “an optical fiber cable is comprised of one or more optical fibers enclosed within protective covering and strength members”).

The instant optical fiber harness is of limited construction and does not fall under heading 8544, HTSUS. In several Customs rulings, the optical fiber cables falling under heading 8544, HTSUS, contained dual acrylate coverings and buffered tubes or similar coverings, including different types of insulation, contained in the cable’s outermost layer or jacket, to provide protection. See HQs 962322, 962445, 963016, 963213, 963256, and 964632, (all dated April 3, 2001). See also HQ 965593, dated July 16, 2003 (affirming HQs 962322, 962445, 963016, 963213, 963256, and 964632); and HQ 966619, dated October 21, 2003. In contrast, the instant optical fiber harness has a relatively thin strengthener layer, and no other buffers or protection. The instant strengthener layer is insufficient to provide enough protection to the optical fiber to meet the definition of an optical fiber cable of heading 8544, HTSUS. Based on the information presented and the foregoing analysis, the instant optical fiber harness is classified under subheading 9001.10.00, HTSUS.

HOLDING:

The instant optical fiber harness is provided for in heading 9001, HTSUS. It is classified under subheading 9001.10.00, HTSUS, which provides for “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: Optical fibers, optical fiber bundles and cables.”

EFFECT ON OTHER HOLDINGS:

NY J86366 is AFFIRMED.

Sincerely,

Myles B. Harmon
Director,

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