HQ H237601
March 27 2015
CLA-2 OT: CTF: TCM H237601 ERB
Supervisory Entry Specialist
U.S. Customs and Border Protection
5600 Pearl Street
Rosemont, IL 60018
Attn: Donna Jirka, Import Specialist
RE: Application for Further Review of Protest Number 3901-12-100982; Tariff classification of glass lenses
Dear Supervisory Entry Specialist:
This letter is in reply to the Application for Further Review (AFR) of Protest Number 3901-12-100982, filed August 28, 2012 by counsel on behalf of Maui Jim USA, Inc. (Maui Jim). The Protest is against U.S. Customs and Border Protection’s (CBP) classification of glass lenses under subheading 9001.40.00 of the Harmonized Tariff Schedule of the United States (HTSUS). No samples were provided to this office.
FACTS:
The subject merchandise is described thusly: entries of unmounted glass plano lenses which will be inserted into Maui Jim sunglasses post-importation. The term “plano” refers to a lens having one flat side, where the other side may be convex or concave. The subject lenses do not have corrective properties, they are non-prescriptive. Maui Jim’s submission states that the lenses have two optical properties: (1) the ability to polarize light and (2) the ability to filter ultraviolet (UV) light.
Maui Jim imported the subject fourteen entries between April 17, 2011 and September 4, 2011 and they were liquidated as entered between March 2, 2012 and July 20, 2012. Maui Jim imported the lenses under heading 9001, 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.”
Maui Jim now claims the lenses are properly classified under heading 7015, HTSUS, which provides for, “Clock or watch glasses and similar glasses, glasses for noncorrective or corrective spectacles, curved, bent, hollowed or the like, not optically worked; hollow glass spheres and their segments, for the manufacture of such glasses.”
Maui Jim notes in its submission that some of the subject entries contained glass lenses (which are at issue here) and non-glass polycarbonate lenses (which are not part of this Protest), and the combined entries were classified in subheading 9001.50.00, HTSUS, which provides for lenses made of materials other than glass. Insofar as that is true regarding the non-glass lenses which are not part of this protest, Maui Jim is seeking refunds only on the value of the glass lenses included in the entry, which again, they argue is classified in subheading 7015.90.50, HTSUS.
ISSUE:
Whether the subject lenses are classified in heading 7015, HTSUS, as “clock or watch glasses and similar glasses, glasses for non-corrective or corrective spectacles…” or whether the lenses have been “optically worked” and are thus classified in heading 9001, HTSUS, which provides for, “lenses,…other than such elements of glass not optically worked.”
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii)(codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest Number 3901-12-100982 is properly accorded to Maui Jim pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact which has not previously been ruled upon by CBP or the Courts of International Trade. Specifically, how the term “optically worked,” as it appears in the tariff of heading 7015, HTSUS, applies to glass lenses.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the heading of tariff schedule and any relative section or chapter notes, and unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration here are as follows:
7015 Clock or watch glasses and similar glasses, glasses for noncorrective or corrective spectacles, curved, bent, hollowed or the like, not optically worked; hollow glass spheres and their segments, for the manufacture of such glasses:
***
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:
Additional U.S. Note 1 to Chapter 90 provides as follows:
For the purposes of headings 9001 and 9002, the term “optically worked” refers to glass the surface of which has been ground or polished in order to produce the required optical properties.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See T.D. -80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN 70.15 states, in relevant part:
This heading covers:
(B) Glass, curved or the like, for non-corrective spectacles (e.g., sun-glasses and other protective spectacles), i.e., glass generally of poorer quality than used for corrective spectacles.
These glasses usually have parallel faces, and are not intended, in practice, for optical working. Nevertheless, should they be optically worked they would be excluded (heading 90.01).
It is not in dispute that the subject lenses have two optical properties: the polarization feature and the UV-filtering light feature. What is at issue is whether the grinding and polishing of the lens, (a process performed on the subject lenses which is also not in dispute) produces the polarization and UV-filtering, such that the lenses would be considered “optically worked” articles of heading 9001, HTSUS.
In Headquarters Ruling (HQ) 089275, dated August 7, 1991, Customs was considering the classification of glass lens blanks and optical glass in finished lens forms. There, Customs stated, “ “Optically worked” refers to glass of which the surface has been ground or polished in order to produce the required optical properties. [The subject lenses] are not optically worked as neither blank is ground or polished before importation into the U.S.” Id citing Additional U.S. Note 1 to Chapter 90, Section XVIII, HTSUSA. In New York Ruling (NY) N240255, dated May 2, 2013, CBP revisited the issue of lenses of Chapter 70 or heading 9001, HTSUS. In differentiating between aspherical lenses formed by molding which were not ground or polished, and glass spherical lenses where the manufacturing process included grinding, smoothing and polishing in order to impart the required optical properties, CBP reiterated that the term “optically worked” refers to the glass surface which has been ground or polished in order to produce the required optical properties. Ultimately, CBP determined that glass aspherical lenses were not optically worked by grinding and polishing, and were not provided for in heading 9001, HTSUS, but rather were classified in heading 7014, HTSUS.
Additional U.S. Note 1 to Chapter 90 is clear that the term “optically worked” refers to grinding or polishing surface treatments which produce the required optical properties. See Additional U.S. Note 1, emphasis added. But the language of Note 1 does not indicate that the grinding or polishing treatment must impart or create the enhanced properties, but rather the effect, or consequence of the grinding or polishing is the desired optical property. Here, it is the grinding and polishing of the lenses that firstly, allows the special coated wafer manufactured into the lens to polarize light for the wearer. Secondarily, the grinding and polishing of the lens allows the UV coating to be applied and adhere properly to the surface of the lens, for the benefit of the user. Thus, the grinding and polishing of the lenses produce the desired optical properties; polarization and UV light protection. Put another way, without the grinding and polishing of the glass, the polarization and UV-filter would not work, and the users would not be able to see through the lens.
Maui Jim’s submission analogizes its products with the “fire polished” lenses discussed in HQ 951709, dated October 5, 1992. However, there the importer explained and Customs’ Office of Laboratory and Scientific Services agreed, that the optical properties of those lenses were directly imparted by the process of molding the glass into its final shape. The curvature of the lens, which was essential to its function, could only be achieved when the glass was in its molten (heat-softened) state, during the manufacturing process. Any further polishing after the lenses hardened did not constitute optical working. The instant lenses did not undergo such a specialized manufacturing process as the fire-polished lenses. The grinding and polishing of the lenses constitutes optical working, and thus they are excluded from heading 7015, HTSUS.
HOLDING:
Pursuant to GRI 1, the subject merchandise is classified under heading 9001, HTSUS. It is specifically provided for under subheading 9001.40.00, 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: Spectacle lenses of glass.” The column one rate of duty is 2% ad valorem.
The Protest should be DENIED.
You are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division