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###### Department of Homeland Security

###### U.S. Customs and Border Protection

# AGENCY:

U.S. Customs and Border Protection, Department of Homeland Security.

# ACTION:

Notice of petitioner's desire to contest classification determination.

# SUMMARY:

On August 4, 2006, a domestic manufacturer of glass preforms for optical fibers (“optical glass preforms”) filed a domestic interested party petition in accordance with the procedures of section 516 of the Tariff Act of 1930, as amended, and 19 CFR Part 175 regarding the tariff classification of imported optical glass preforms. The petition challenged CBP's classification of optical glass preforms under subheading 7002.20.10, Harmonized Tariff Schedule of the United States (HTSUS), and requested CBP to reclassify all optical glass preforms under subheading 7020.00.60, HTSUS, as other articles of glass, or, alternatively, under 9001.10.00, HTSUS, as unfinished optical fibers. On July 14, 2008, Customs and Border Protection (CBP) denied the petition and affirmed its decision that optical glass preforms are classified in subheading 7002.20.10, HTSUS, as glass rods of fused quartz or other fused silica, unworked. In accordance with 19 CFR 175.23 and 175.24, CBP is providing notice of its classification decision and is also giving notice of the receipt of petitioner's desire to contest this decision in court.

# DATES:

June 12, 2009.

# FOR FURTHER INFORMATION CONTACT:

Allyson R. Mattanah, Tariff Classification and Marking Branch, Regulations and Rulings, Office of International Trade, (202) 325-0029.

# SUPPLEMENTARY INFORMATION:

## Background

This document concerns the classification of imported optical glass preforms by Customs and Border Protection (CBP) and the desire of a domestic interested party to contest CBP's classification decision.

### Classification of Optical Glass Preforms

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs taken in order. The Explanatory Notes to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

                    Optical fibers (also known as fiber optics) are long, thin strands of pure glass about the diameter of a human hair. They are arranged in bundles called optical cables and used to transmit light signals over long                           ( print page 28055)                        distances. The light travels through the core by constantly bouncing from mirror-lined walls, known as the cladding. Because the cladding does not absorb any light from the core, the light wave can travel great distances.                

Upon importation, glass preforms for optical fibers (“optical glass preforms”) consist of glass rods of various sizes and dimensions from which glass optical fiber is fabricated. They are produced by a two-step process. In the first step, called Vapor Axial Deposition, extremely fine dusts of silica tetrachloride fuse into a rod when drawn through an annealing furnace, creating the core layer of the optical glass preform. In the second step, the cladding layer is added by fusing a layer of silica dioxide powder to the outside of the core rod. The result is that the core and cladding of the optical glass preform is made of visibly different layers of glass because of their different refractive indexes.

                    Heading 7002, HTSUS, provides for “Glass in balls (other than microspheres of heading 7018), rods or tubes, unworked”. This is an                     *eo nomine*                     provision that covers unworked glass rods. Subheading 7002.20.10, HTSUS, provides for “Rods: of fused quartz or other fused silica”. The 2009 column one, general rate of duty for this provision is free.                

                    Heading 7020, HTSUS, provides for “Other articles of glass” and subheading 7020.00.60, HTSUS, provides for “Other”. This is a basket provision that provides for articles of glass not otherwise covered in Chapter 70 of the HTSUS. The 2009 column one, general rate of duty under this provision is 5 percent                     *ad valorem.*

                    Heading 9001, HTSUS, 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”. Subheading 9001.10.00, HTSUS, provides for “Optical fibers, optical fiber bundles and cables, and other”. The 2009 column one, general rate of duty for this provision is 6.7 percent                     *ad valorem.*

On April 21, 2006, CBP issued Headquarters Ruling (HQ) 967058 to Lucent Technologies regarding optical glass preforms. In this ruling, CBP concluded that the proper classification is under subheading 7002.20.10, HTSUS. CBP found that because the manufacture of optical glass preforms is a process that requires multiple steps, the articles are not complete until the desired layers are created and form a pure, solid whole. Therefore, the “working” of glass articles occurs after their creation.

### Filing of Domestic Interested Party Petition

On August 4th, 2006, Corning, a manufacturer of optical glass preforms in the U.S., filed a domestic interested party petition, in accordance with section 516, Tariff Act of 1930, as amended (19 U.S.C. 1516), requesting that CBP reclassify imported optical glass preforms in either of subheadings 7020.00.60 or 9001.10.00, HTSUS. Corning's challenge of CBP's classification of these optical glass preforms turned on the issue of whether the different glass refractions evidence the existence of a glass core rod which has been “worked” by the addition to it of a layer of cladding glass.

                    On March 28, 2007, in accordance with 19 CFR 175.21, CBP published a Notice of Receipt of Domestic Interested Party Petition filed by petitioner Corning in the                     **Federal Register**                     (72 FR 14603). The notice invited written comments on the petition from interested parties until May 27, 2007. Two comments were received in response to this notice, both of which concurred with CBP's position that the optical glass preforms described in HQ 967058 are classified in subheading 7002.20.10, HTSUS.                

### Decision on Petition and Notice of Petitioner's Desire To Contest

On July 14, 2008, CBP issued HQ W968361, denying Corning's Domestic Interested Party Petition and satisfying the requirements of 19 CFR 175.22(b) by providing the petitioner with notification that the classification of the imported optical glass preforms was found to be correct. CBP classified the optical glass preforms based on its finding that these goods are solid multi-layered rods made from fused silica that are unworked in their condition as imported. This letter officially notified the petitioner that “CBP correctly classified the glass preform described in HQ 967058, by application of GRI 1, under heading 7002, HTSUS, and specifically under subheading 7002.20.1000, as glass rods, unworked, of fused quartz or other fused silica.”

On August 6, 2008, Corning timely provided CBP with notice of its desire to contest HQ W968361 in the United States Court of International Trade and its desire to contest the liquidation of entries of optical glass preforms at the Port of Charlotte, North Carolina in accordance with 19 U.S.C. 1516(c) and 19 CFR 175.23.

As required by both the applicable statute and regulations, CBP is in receipt of Corning's letter, dated August 6, 2008, establishing the timely notice of its desire to contest in the Court of International Trade CBP's decision letter of HQ W968361 which held that the classification of imported optical glass preforms is under subheading 7002.20.10, HTSUS, as glass rods, unworked, of fused quartz or other fused silica.

Authority:This notice is published in accordance with 19 U.S.C. 1516 and sections 175.23 and 175.24 of the CBP Regulations (19 CFR 175.23-24).

Dated: June 9, 2009.

Jayson P. Ahern,

Acting Commissioner, Customs and Border Protection.

[FR Doc. E9-13938 Filed 6-11-09; 8:45 am]

BILLING CODE 9111-14-P