CLA-2 RR:CR:GC 959905 JRS
Port Director of Customs
555 Battery Street
San Francisco, CA 94111
RE: Protest 2809-96-101123; colored filter glass, unpolished and polished, in material sizes; EN 90.01; not "optically worked"; optical element; Additional U.S. Note 1, Chapter 90; Heading 7014; EN 70.14; "blanks"; EN GRI Rule 2(a)(II); Heading 7005; Note 2(b), Chapter 70; HQs 951709; 957373
Dear Port Director:
The following is our decision regarding Protest 2809-96-101123, which concerns the classification of colored filter glass as lens blanks under subheading 7014.00.20, Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise, manufactured in Japan, was entered on March 27, 1996, and the entry was liquidated on July 12, 1996. The protest was timely filed on August 22, 1996.
Five samples were submitted for our examination. In preparing our decision, we have taken into consideration counsel’s additional submissions dated April 15, 1997, August 10, August 11, and November 10, 1998.
The merchandise is colored filter glass (generally 290mm x 520mm, 165mm x 165mm, or 50mm x 50mm), both unpolished and polished. The merchandise involved is a product of the Optical Division of HOYA, which produces IC substrates, industrial filters, and optical glass for use in optical filters, photography, and information processing systems. HOYA manufactures colored filter glass with wide-range spectral characteristics covering the ultraviolet to infrared region, which are used for photography, scientific applications, educational purposes, various electronic instruments and many other fields.
The colored filter glass is produced by the following three different methods: clay pot method, platinum pot or silica pot melting followed by casting into a mold, and continuous melting method involving extrusion onto a slow moving casting bed. After importation, HOYA states that the merchandise may be sold in unpolished or polished form in material sizes; may be cut to size or shape for particular end customers; or may be used by HOYA to manufacture unmounted or mounted filters.
Protestant states that although denominated on the commercial invoices as "blanks," the filter glass is imported in standard material sizes, which are intended to be cut after importation, either by HOYA or its customers, into actual filter lenses. Protestant states that this protest does not concern lens blanks, optical elements, or optically worked merchandise; it is restricted to unpolished and polished filter glass imported in material sizes (but see discussion of Sample 3, below).
Protestant maintains that this filter glass is used by its customers to make a wide range of products. Protestant provided evidence of one of its customers of the range of fabrication services that are performed on the imported material, namely; the shaping of glass, annealing, coating, polishing, edging, core drilling, blanchard grinding, sawing, grinding, glazing, tempering and preparation of molded blanks. Circles, rectangles, and odd shapes can be cut and/or ground individually or in volume runs.
Sample 1 is a ground, unpolished 165mm square of red R-60 glass, manufactured in the clay pot method. It is in the form in which it is imported and is 2mm thick.
Sample 2 is a ground, unpolished blue U series glass. It is manufactured using the silica pot casting for U series (ultra-violet), and IR and RM series (infra-red) and measures approximately 4 3/8" x 3 3/8" and is 5mm thick.
Sample 3 is a polished 50mm square of blue B-480 glass. It is manufactured by the platinum pot casting method used for phosphate based HY-1 (multi-band calibration filters), B series (blue filters), D series (neutral density filters) and V series (multi-band calibration filters)(didymium) and is approximately 2mm thick. The 50mm² size is often put to its final uses without being further cut to size or shape since it is most often used as filter blanks for the calibration of different scientific instruments.
Sample 4 is a ground, unpolished sheet of type AC-55 blue glass cut from the 290mm x 540 mm sheet, but it is otherwise in its condition as imported. It was manufactured by the continuous melting cast method used for G series (green), AC series (contrast filters), C series (filters for IR blocking and detectors, sensors, photo-cells and for one step cameras and TV cameras, etc.) and VER-8 (calibration) and measures approximately 11 5/8" x 3 5/8" and is 4mm thick.
Sample 5 is a ground, polished piece of AC-55 bluish-gray glass, 4mm thick, measuring approximately 3 3/4" x 3 3/4" with its corners cut, arguably making it hexagonal in shape. Protestant states that the corners were cut on this sample after importation.
Protestant contends that all the colored filter glass is classifiable as other non-wired surface ground glass, not otherwise worked, colored throughout the mass in subheading 7005.21.10/20, HTSUS.
The headings under consideration are as follows:
7005 Float glass and surface ground or polished glass,
in sheets, whether or not having an absorbent,
reflecting or nonreflecting layer, but not
Other nonwired glass:
7005.21 Colored throughout the mass (body
tinted), opacified, flashed or merely
7005.21.10 Measuring less than 10 mm in
thickness...15.5¢/m² + 0.4% (1996)
7005.21.20 Measuring 10 mm or more in
thickness...6% ad valorem (1996)
* * * * *
7014 Signaling glassware and optical elements of glass
(other than those of heading 7015), not optically
7014.00.10 Lens blanks (other than for spectacles)...6.6% ad val.(1996)
7014.00.20 Other...8% ad valorem (1996)
* * * * *
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
* * * *
9001.90.90 Other...6.2% ad valorem (1996)
Whether or not the colored filter glass are blanks of optical elements, not optically worked under subheading 7014.00.10, HTSUS; other surface ground or polished nonwired glass, in sheets, not otherwise worked, colored throughout the mass, opacified, flashed or merely surface ground under subheading 7005.21.10/20, HTSUS; or other optical elements of glass, optically worked, under subheading 9001.90.90, HTSUS.
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 . . . ." Chapter 70 of the HTSUS provides for glass and glassware and Chapter 90 covers optical instruments and apparatus. Chapter Note 1(e) to Chapter 90, HTSUS, states that this chapter does not cover: “[g]oods of heading 7007, 7008, 7011, 7014, 7015 or 7017 [emphasis added]” and Chapter Note 1(d) to Chapter 70, HTSUS, states that this chapter does not cover "... optically worked elements ... of [C]hapter 90[.]"
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 90.01 (pg. 1579) states that "to distinguish between 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. 1579) describes this process in greater detail:
The optical working of glass is usually 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. The heading does not apply to unpolished elements having undergone merely one or more of the processes which precede polishing. Such elements fall in Chapter 70 (Emphasis in the original).
Thus, under Additional U.S. Note 1 of Chapter 90, for glass articles to be classified as optical elements of Chapter 90, the optical properties of the glass must have been produced by grinding or polishing. The optical properties of the colored filter glass (filtering ultraviolet rays, allowing infrared/thermal radiation to pass through the glass, etc; see Exhibit A to the protest, listing "Color Filter Glass Applications"; see HQ 957373 dated May 19, 1995, finding such properties to be optical properties) are not produced by grinding or polishing; they are produced by the glass-making method and ingredients used. For this reason, the colored filter glass cannot be classified under heading 9001, HTSUS. Under Additional U.S. Note 1 to Chapter 90, glass with optical qualities that have not been brought about by working is properly classifiable in Chapter 70. We must, therefore, consider whether any of the colored filter glass falls under either heading 7014 or heading 7005, HTSUS.
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 specific molding process or other manufacturing process and those in the form as a "blank." EN 70.14, pg. 937.
EN 70.14 (pg. 937), further states, in pertinent part:
The heading also includes blanks of optical elements and optical elements which require optical working. Optical working consists of grinding the surfaces first with coarse and then gradually finer abrasives. The successive operations are thus roughing, trueing, smoothing and polishing. Articles which have undergone one or more of the processes preceding polishing remain in this heading. But elements which have the whole or part of one or more of their surfaces polished to produce the optical properties are excluded (heading 90.01 or 90.02 according to whether they are unmounted or mounted - see corresponding Explanatory Notes). (Emphasis in the original).
The scope of heading 7014, HTSUS, covers optical elements of glass which are manufactured in a way that imparts some required optical effect without requiring further optical working after molding, for example, lenses for automobile headlamps, parking lights, direction indicating lights, cycle rear lights, road traffic lights, certain buoys, spotlight bulbs, pocket lamps, electric torches, switchboards and panel lights. EN 70.14, pg. 937. Customs has ruled, for example, that fire polished lenses obtain their optical properties by the process of molding the glass so as to produce the required optical property without being ground and polished and are properly classified under heading 7014. See HQ 951709, October 5, 1992.
Customs has also ruled that solar reflectors and solar cell coverglass used on satellites in the form of sheets, although having the optical properties of preventing ultraviolet rays from passing through the glass and allowing infrared/thermal radiation to pass through the glass, are not classifiable in heading 7014 because they are not of the class or kind of optical elements classifiable under subheading 7014.00.20, HTSUS (HQ 957373, referred to above, citing and relying on the exemplars listed in EN 70.14 (see above)). Similarly, except for Sample 3 (the 50mm² filters; discussed below), the colored filter glass is not described in heading 7014 as it is basic material not in the form as a blank, and not within the class or kind of articles mentioned in EN 70.14.
Headings 7003 and 7004, HTSUS, provide for unpolished glass sheets, depending upon method of manufacture, and heading 7005, HTSUS, provides for float glass and/or polished glass in sheets. Note 2, Chapter 70, HTSUS, states that for purposes of these headings:
(a) Glass is not regarded as "worked" by reason of any process it has undergone
(b) Cutting to shape does not affect the classification of glass in sheets;
(c) The expression "absorbent or reflecting layer" means a microscopically thin
coating of metal or of a chemical compound (for example, metal oxide) which
absorbs, for example infrared light or improves the reflecting qualities of the glass
while still allowing it to retain a degree of transparency or translucency.
EN 70.05 (pg. 1014), states, in pertinent part:
The heading also covers the types of glass of headings 70.03 and 70.04, which have been surface ground or polished (usually the two processes are combined)(Emphasis in the original).
Heading 7005, HTSUS, covers surface ground glass and polished glass which is ground to smoothness, with transparency achieved by polishing with a rouge. This is the process which is applied to HOYA filter glass, which is imported flat and smooth with no curvatures or angles.
Protestant contends that because these items, in their imported form, remain adaptable to multiple end uses and do not have the essential shape of any specific finished article, their classification as "blanks" appears inappropriate. Protestant points out that the filter glass in "material sizes" has not yet reached the level of optical elements or blanks of optical elements since it is still in the form of the sheets from which such articles or elements may be cut.
EN GRI Rule 2(a)(II) provides that:
The provisions of this Rule also apply to blanks unless these are specified in a particular heading. The term "blank" means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part (e.g., bottle preforms of plastics being intermediate products having the tubular shape, with one closed end and one open end threaded to secure a screw type closure, the portion below the threaded end being intended to be expanded to a desired size and shape). Semi-manufactures not yet having the essential shape of the finished articles (such as is generally the case with bars, discs, tubes, etc.) are not regarded as "blanks" (Emphasis in the original).
From the substantiating evidence provided, we agree with the Protestant’s position that the colored filter glass (other than Sample 3) is not ready to be placed into the final product without further working. In addition, the filter glass is not considered a "blank" as defined in EN GRI Rule 2(a)(II) because the merchandise is imported in sheets of material sizes (generally 290mm x 520mm and 165mm x 165mm) and not in the approximate shape or outline of the finished article. Neither the HTSUS nor the ENs define what size would constitute a "sheet." Note 2(b) to Chapter 70, however, states that "cutting to shape does not affect the classification of glass in sheets." We interpret this to mean that any basic material or standard size piece of glass may be considered a "sheet" unless it is cut to a specific shape or size for a "blank." Except for Sample 3, the colored filter glass will be further cut to size after importation. We find that Samples 1, 2, 4 and 5 are not blanks within the meaning of GRI Rule 2(a)(II) and heading 7014, HTSUS, as the glass will be further worked to produce the final product.
Sample 4 (AC-55 glass) is imported in a milled, ground finished condition and in a size (290mm x 480mm) that will be further cut after importation. The glass has not been edge-worked in any manner. The curve in the sample’s edge is stated to have been caused by the glass hitting the former during the extrusion process. The imported piece of filter glass is cut from the extruded product. Since no optical properties have been produced by "working" and the glass is not imported in condition as a blank for an optical element, it cannot be classified under heading 9001 or heading 7014, HTSUS, as the language of the headings are not met. The AC-55 glass is a piece of glass in a standard size and, as such, it is classifiable as surface ground glass or polished glass, in sheets, not otherwise worked, other non-wired glass: colored throughout the mass in subheading 7005.21, with classification depending upon the thickness, in subheading 7005.21.10 (if less than 10mm) or in subheading 7005.21.20 (if 10mm or more). Sample 4 is 4mm thick so it is classifiable under subheading 7005.21.10, HTSUS.
Samples 1 and 2 (R-60 and U series glass, respectively) are ground finished. Sample 1 is 2mm thick and Sample 2 is 5mm thick. These two samples are classifiable under subheading 7005.21.10, HTSUS, as surface ground or polished glass, in sheets, not otherwise worked, other non-wired glass: colored throughout the mass with a thickness less than 10mm.
Sample 5 is highly polished filter glass (AC-55) which was ground and polished. This sample is classified under subheading 7005.21.10, HTSUS, as it is 4mm in thickness.
We note that the four edges of Sample 5 were cut/snipped after importation. If this process had occurred prior to importation, or if it had been in any other way worked, such as, edge-worked (that is, polishing the sides or edges of the glass), beveled, bent, engraved, drilled, enameled or champfered, subheading 7006.00.40, HTSUS, would apply and not subheading 7005.21.10, HTSUS. We note that EN 70.05 (pg. 1014) specifically provides that: "Glass in sheets which has undergone working not provided for in the heading text or in Note 2(b) to this Chapter, including bent or curved glass, is excluded (headings 70.06, 70.07, 70.09, etc)."
In regard to Sample 3, it is a piece of highly polished filter glass (B-480) which was ground and polished, and has optical properties (see HQ 957373, cited above; see also Exhibit A to the protest, listing "Color Filter Glass Applications"). As noted above, these optical properties were not produced from "optically working" the glass, so that classification in heading 9001 is precluded by Additional U.S. Note 1 to Chapter 90. HOYA has substantiated the fact in its additional submission that, upon importation, Sample 3 has been cut into the desired shape and size as required by the customer for its use in the finished article for the calibration of scientific instruments. We consider this sample to be an optical element of glass under subheading 7014.00.20 because it produces the required optical properties in the glass as a filter blank without being optically worked. Although Sample 3 is not a "lens blank" under subheading 7014.00.10, it is a filter blank and, as such, is appropriately classified as other optical elements under subheading 7014.00.20.
The colored filter glass, as above-described as Samples 1, 2, 4, and 5, are properly classifiable as, surface ground or polished glass, in sheets, not otherwise worked, other non-wired glass: colored throughout the mass (body tinted), opacified, flashed or merely surface ground in subheading 7005.21, with classification depending upon the thickness, in subheading 7005.21.10, HTSUS (if less than 10mm) or subheading 7005.21.20, HTSUS (if 10mm or more).
The colored filter blank (Sample 3) is properly classified as other optical elements in subheading 7014.00.20, HTSUS.
Accordingly, you are directed to allow the protest, in part, with regard to merchandise as described by Samples 1, 2, 4 and 5. You are also directed to deny the protest, in part, with regard to merchandise as described by Sample 3.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division