[Federal Register Volume 72, Number 59 (Wednesday, March 28, 2007)]
[Notices]
[Pages 14603-14605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5712]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2007-0030.
    <bullet> 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.
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    \1\ HQ 960948 was revoked for other reasons by HQ 967058, dated 
April 21, 2006.
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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