CLA-2 CO:R:C:M 951709 LTO

Mr. P. S. Brockington
Ohara Corporation
50 Columbia Road, Branchburg Township
Somerville, New Jersey 08876-3519

RE: Fire Polished Lenses; EN 90.01; Additional U.S. Note 1 to Chapter 90 ["optically worked"]

Dear Mr. Brockington:

This is in response to your letter of March 13, 1992, requesting the classification of fire polished lenses under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response.

FACTS:

The articles in question are described as fire polished lenses. These lenses are used to focus and receive a beam of light through photoelectric actuation devices, such as, bottle counting machines and door openers, and in sensing lenses for post office bar code readers and label bar code readers.

The lenses have optical properties produced by the process of molding the glass into its final shape while the glass is in a pliable, heat-softened state. The glass rods are softened and shaped into lens shapes with curved surfaces. This process is referred to as "fire polishing."

In a meeting with this office on August 19, 1992, you stated that some of these "fire polished" lenses are subjected to a polishing process after the molding operation. The samples you submitted were examined by the Office of Laboratories and Scientific Services at Headquarters, and they determined that one lens was in fact polished after molding.

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ISSUE:

1. Whether fire polished (molded) lenses are "optically worked" according to Additional U.S. Note 1 to Chapter 90.

2. Whether lenses that are subjected to a polishing process after molding are "optically worked" according to Additional U.S. Note 1 to Chapter 90.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The headings at issue are as follows:

7014 Signaling glassware and optical elements of glass (other than those of heading 7015), not optically worked

* * * * * * * * * * * * *

9001 [L]enses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, 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. EN 90.01, pg. 1459, states that "to distinguish between the optical elements of glass of this heading and those of Chapter 70 it is necessary to determine whether or not they have been optically worked [emphasis in original]."

Additional U.S. Note 1 to Chapter 90 states that "[f]or 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." EN 90.01, pg. 1459, describes this process in greater detail:

The optical working of glass is usually - 3 -

performed in two stages, viz., the production of the surfaces to the shape required (i.e., with the necessary curvature, at the correct angle, etc.), and the polishing of these surfaces. This working consists of grinding the surfaces by means of abrasives, rough at first, then gradually finer, the successive operations being roughing, trueing, smoothing and polishing. Finally, in the case of lenses required to be of an exact diameter, the edges are ground; this is known as the centring and edging operation. This heading applies only to optical elements of which the whole or part of their surface has been polished in order to produce the required optical properties. It applies therefore to elements which have been ground and polished as described above, and also to elements which have been polished after moulding [emphasis added].

1. Fire polished (molded) lenses

Fire polished lenses obtain their optical properties by the process of molding the glass into its final shape while the glass is in a pliable, heat-softened state. The glass rods are softened and shaped into lens shapes with curved surfaces. The end result is a lens having optical properties (specific focal lengths and focal points) similar to those lenses which have been optically worked.

However, while the lenses have similar optical properties, they have not been ground or polished to obtain these properties. Thus, they are not "optically worked" as that term is described in Additional U.S. Note 1 to Chapter 90, and they cannot be classified under Heading 9001, HTSUS.

On the other hand, Heading 7014, HTSUS, covers optical elements of glass which are manufactured in a way that produces some required optical effect without being optically worked, including those which have obtained an optical property through a molding process or other manufacturing process. EN 70.14, pg. 937.

In your letter of March 13, 1992, you suggest that the lenses in question require no further working because the rod molding process imparts the required optical properties to the lenses. This fact, however, does not take the lenses beyond the scope of Heading 7014, HTSUS, which covers lenses that require no further optical working after molding, for example, lenses for automobile headlamps, parking lights, direction indicating lights, switchboards and panel lights. EN 70.14, pg. 937.

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The fire polished lenses are classifiable under subheading 7014.00.20, HTSUS, which covers finished optical elements which have been manufactured in such a way so as to produce the required optical property without being ground and polished.

2. Lenses polished after molding

In the meeting of August 19, 1992, you stated that in certain instances, the flat surface of the molded lens is ground and polished to give the focal length of the lens greater accuracy. This polishing of the molded lens "fine tunes" the lens' optical properties.

The molding (or "fire polishing") process gives the lens its rough optical characteristics and the polishing of the lens brings it to "trueness" or its exact convexity or concavity specification. Rather than creating a lens with a specific focal point (which was done during the molding operation), the polishing process "trues" the surface, removing most of the edge aberrations, so that all of the light rays fall at the selected focal point.

As mentioned above, EN 90.01, pg. 1459, states that Heading 9001, HTSUS, applies only to lenses of which the whole or part of their surface has been polished to obtain the required optical properties, and that the heading applies to lenses which have been polished after molding. While the polishing process in question does not give the lens its primary optical properties (which are imparted by the molding operation), it does in fact increase the accuracy of the focal point of the lens.

According to Additional U.S. Note 1 to Chapter 90 and EN 90.01, the lenses which have been polished after molding are "optically worked" for tariff purposes. Thus, they are classifiable under Heading 9001, HTSUS, specifically under subheading 9001.90.40, HTSUS, which provides for optically worked lenses.

HOLDING:

The fire polished (molded) lenses are classifiable under subheading 7014.00.20, HTSUS, which provides for "[s]ignaling glassware and optical elements of glass (other than those of heading 7015), not optically worked . . . [o]ptical elements . . . [o]ther." The corresponding rate of duty for articles of this subheading is 10% ad valorem.

The lenses which have been polished after the molding operation are classifiable under subheading 9001.90.40, HTSUS, which provides for "lenses (including contact lenses), prisms,

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mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked . . . [o]ther . . . [l]enses." The corresponding rate of duty for articles of this subheading is 5.6% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division