[Federal Register: March 28, 2007 (Volume 72, Number 59)]
[Notices]
[Page 14603-14605]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr07-110]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Bureau of Customs and Border Protection
[USCBP-2007-0030]
Receipt of Domestic Interested Party Petition Concerning Tariff
Classification of Glass Optical Preforms
AGENCY: Customs and Border Protection, Department of Homeland Security.
ACTION: Notice of receipt of domestic interested party petition;
solicitation of comments.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Customs and Border Protection (CBP) has received
a petition submitted on behalf of a domestic interested party
requesting the reclassification under the Harmonized Tariff Schedule of
the United States (HTSUS) of glass optical preforms. CBP's current
position is that glass optical preforms are classifiable duty-free in
subheading 7002.20.1000, HTSUS, as glass rods of fused quartz or other
fused silica, unworked. Petitioner maintains that this classification
is incorrect because the optical fiber preforms consist of a glass core
rod that has been ``worked'' by the addition of a layer of cladding
glass to the core rod. Petitioner asserts that subheading 7020.00.6000,
HTSUS, other articles of glass, other, represents the correct
classification. The 2007 rate of duty under this provision is 5 percent
ad valorem.
DATES: Comments must be received on or before May 29, 2007.
[[Page 14604]]
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2007-0030.
Mail: Trade and Commercial Regulations Branch, Regulations
and Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania
Avenue, NW., (Mint Annex), Washington, DC 20229.
Instructions: All submissions received must include the agency name
and docket number for this notice of domestic interested party petition
concerning the tariff classification of glass optical preforms. All
comments received will be posted without change to http://www.regulations.gov
, including any personal information provided.
Docket: For access to the docket to read background documents or
comments received go to http://www.regulations.gov. Submitted comments
may also be inspected during regular business days between the hours of
9 a.m. and 4:30 p.m. at the Bureau of Customs and Border Protection,
Regulations and Rulings, Trade and Commercial Regulations Branch, 799
9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect
submitted comments should be made in advance by calling Joseph Clark,
Trade and Commercial Regulations Branch, at (202) 572-8768.
FOR FURTHER INFORMATION CONTACT: Emily M. Simon, Tariff Classification
and Marking Branch, Regulations and Rulings, Office of International
Trade at (202) 572-8867.
SUPPLEMENTARY INFORMATION:
Background
A petition has been filed under section 516, Tariff Act of 1930, as
amended (19 U.S.C. 1516), on behalf of Corning Incorporated, Corning,
New York, requesting that Customs and Border Protection (CBP)
reclassify imported optical glass preforms. In accordance with HQ
967058 and HQ 967059, both dated April 21, 2006, CBP classifies this
merchandise duty-free in subheading 7002. 20.1000, Harmonized Tariff
Schedule of the United States (HTSUS), as glass rods of fused quartz or
other fused silica, unworked. Petitioner maintains that this
classification is incorrect because the optical fiber preforms consist
of a glass core rod that has been ``worked'' by the addition of a layer
of cladding glass to the core rod. Petitioner asserts that subheading
7020.00.6000, HTSUS, other articles of glass, other, represents the
correct classification. The 2007 rate of duty under this provision is 5
percent ad valorem.
Classification under the HTSUS is determined in accordance with the
General Rules of Interpretation (GRIs). GRI 1 provides that the
classification of goods shall be according to the terms of the headings
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 2 through
6 may then be applied in order.
Optical glass preforms are produced by a two-step process. In the
first step, the core layer of the preform is drawn through an annealing
furnace, fusing it into a rod by a method called vapor axial
deposition. In the second step, the cladding layer of the preform is
added by fusing a layer of silica dioxide powder to the outside of the
core rod.
Petitioner maintains that CBP's position that core rods are
identifiable merely as an intermediate stage in a somewhat continuous
process of producing preforms is erroneous. Petitioner contends that
core rods exist as a separate and distinct commercial article, are
recognized throughout the industry as ``rods,'' and are referred to as
such. Petitioner concludes that the addition of a layer of cladding
glass to a core rod renders the rod ``worked,'' and results in
classification in heading 7020, HTSUS, as other articles of glass.
At GRI 1, the classification of optical glass preforms in heading
7002, HTSUS, results from a finding that they are unworked. CBP has
uniformly considered the process of ``working'' glass to have been
performed on an extant article of glass, rather than during the process
of creating or manufacturing that article. See HQ 960274, dated October
9, 1997. Therefore, it is CBP's position that the ``working'' of glass
articles contemplates a mechanical or physical alteration of the glass
after the glass articles are created. Consequently, the addition to a
glass core rod of a layer of cladding glass to complete a glass preform
cannot at the same time be considered a ``working'' of that preform.
As an alternative claim, Petitioner asserts that the glass optical
preforms, which it now refers to as optical fiber preforms, have a
single and recognizable predetermined use as optical fibers. As such,
they qualify as incomplete or unfinished optical fibers under GRI 2(a),
HTSUS, having the essential character of complete or finished optical
fibers classifiable in subheading 9001.10.0030, HTSUS. Optical fibers
and other articles of Chapter 90 are excluded from Chapter 70, pursuant
to Chapter 70, Note 1(d), HTSUS. The 2007 rate of duty under this
provision is 6.7 percent ad valorem.
Petitioner maintains the preforms possess all of the critical
optical properties of the fiber, citing HQ 560660 dated April 9, 1999.
HQ 560660 involved an analysis of ``character'' for purposes of
substantial transformation in a marking or origin context. CBP found in
that ruling that there was no recognizable change in character based on
the drawing of the preform into fiber. Petitioner maintains that
finding applies equally in a GRI 2(a) context. HQ 560660 cited HQ
960948 \1\ dated September 11, 1998, with respect to whether a glass
preform was properly classifiable under subheading 9001.10.00, HTSUS,
as incomplete or unfinished optical fiber, on the basis of GRI 2(a),
HTSUS. Under GRI 2(a), an incomplete or unfinished article will be
classified as a complete or finished article provided it has the
``essential character'' of the complete or finished article. HQ 960948
cited court cases, which looked to the function or use of the article
in determining essential character for classification purposes. The
ruling stated that the preform is a magnified version of the fiber to
be drawn from it and, accordingly, both have the same critical fiber
optic attributes. However, CBP noted that the preform does not have the
essential physical characteristics (i.e., thinness and flexibility)
necessary for practical use as optical fiber. It was further noted
that, pursuant to a Harmonized Commodity Description and Coding System
Explanatory Note (EN) for GRI 2(a) (i.e., EN GRI Rule 2(a)(II)), the
preforms may not be classified as incomplete or unfinished optical
fiber (as ``blanks'') because they did not have ``the approximate shape
or outline'' of the finished article. Thus, CBP concluded that the
glass preform did not have the essential character of a complete or
finished optical fiber, and was not an incomplete or unfinished optical
fiber classifiable in subheading 9001.10.00, HTSUS.
---------------------------------------------------------------------------
\1\ HQ 960948 was revoked for other reasons by HQ 967058, dated
April 21, 2006.
---------------------------------------------------------------------------
Comments
Pursuant to section 175.21(a), CBP regulations (19 CFR 175.21(a)),
before making a determination on this matter, CBP invites written
comments on the petition from interested parties.
The domestic interested party petition concerning the tariff
classification of optical glass preforms, as well as all comments
received in response to this notice, will be available for public
inspection in accordance with the
[[Page 14605]]
Freedom of Information Act (5 U.S.C. 552, and Section 103.11(b), CBP
regulations (19 CFR 103.11(b)), between the hours of 9 a.m. and 4:30
p.m. on regular business days at the Bureau of Customs and Border
Protection, Office of Regulations and Rulings, Trade and Commercial
Regulations Branch, 799 9th Street, NW., 5th Floor, Washington, DC.
Arrangements to inspect submitted comments should be made in advance by
calling Joseph Clark at (202) 572-8768.
Authority
This notice is published in accordance with section 175.21(a), CBP
Regulations (19 CFR 175.21(a)) and 19 U.S.C. 1516.
Dated: March 23, 2007.
W. Ralph Basham,
Commissioner, Bureau of Customs and Border Protection.
[FR Doc. E7-5712 Filed 3-27-07; 8:45 am]
BILLING CODE 9111-14-P