CLA-2 OT:RR:CTF:TCM H050836 CkG
TARIFF NO: 3926.90.99
Mr. John Pellegrini
McGuireWoods LLP
1345 Avenue of the Americas
New York, NY 10105-0106
Ms. Deanna Werber
Contamac US, Inc. Grand Valley Business Plaza
2214 Sanford Drive, Suite B7
Grand Junction, CO 81505
RE: Revocation of NY N035645, NY M80655, and NY J85736; classification of contact lens buttons
Dear Mr. Pellegrini:
This is in response to your letter of January 27, 2009, on behalf of your client, CIBA Vision Puerto Rico, Inc., requesting the reconsideration of New York Ruling Letter (NY) N035645, issued on September 9, 2008. CBP ruled in this decision that contact lens blanks/buttons imported by CIBA Vision Puerto Rico, Inc. were classified in subheading 9001.30.00, HTSUS, as contact lenses. You believe that the correct classification of the subject contact lens buttons is in heading 3926, HTSUS, as “other” articles of plastic. A sample of the subject merchandise was included with the request.
We have reviewed NY N035645, and also rulings NY M80655 and NY J85736, issued to Contamac, Ltd. on March 17, 2006, and June 23, 2003, respectively. In NY M80655 and NY J85736, CBP determined that substantially similar merchandise was classified by application of GRI 2(a) in heading 9001, HTSUS, as unfinished contact lenses. For the reasons set forth below, we find that classification of the contact lens buttons at issue in heading 9001, HTSUS, was incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke NY N035645, NY M80655, and NY J85736 was published on April 29, 2015, in Volume 49, Number 17, of the
Customs Bulletin. No comments were received in response to this Notice.
FACTS:
In NY N035645, the subject merchandise was described as follows:
The imported plastic blanks, which you refer to as buttons, are used to manufacture Permalens contact lenses. The disc shaped lens buttons are made of Perfilcon A polymer and trimmed to 12.75 millimeter in diameter and 4.70 millimeter in thickness. Following importation, the contact lens buttons will undergo further manufacturing steps including but not limited to base and front curve cutting, polishing, cleaning, hydration and final packaging.
A sample of the merchandise at issue in NY N035645 was sent to the CBP laboratory for examination (Lab report # SP20100152). The examination concluded that the item did not produce an optical effect such as magnification, collimation, refraction, etc.
NY M80655 described the subject merchandise as follows:
The five styles of Contamac Ltd. contact lens buttons are identified in your letter as GM3F 58, GM3F 49, C38F Contaflex 38, C55F Contaflex 55, and Optimum range. The contact lens buttons are all similar in design and chemical formulation. The contact lens buttons are produced in a disc shape and are polymerized in a hot water bath. After manufacture, the buttons are ejected from the mold and are trimmed to a particular contact lens size. The diameter sizes range from 12mm to 22mm and the most common size is a 12mm diameter. The buttons come in various colors: blue, light blue, green, grey and clear. You state in your letter that these buttons are not a primary form of plastic and that the only use for the contact lens buttons is in the production of finished contact lenses by finishing contact lens laboratories. The contact lens buttons are imported into the United States and sold to contact lens finishing laboratories. The finishing laboratories place the buttons into a CNC lathe. Then a base curve and a front curve are cut forming the finished device, a contact lens.
The merchandise at issue in NY J85736 was described as follows:
The contact lens buttons are produced in a disc shape and are trimmed to 12mm in diameter, which is a particular contact lens size. The packaging is marked Hybrid FS 1077-50 Blue. The material used to produce the Hybrid FS is modified fluoro silicone acrylate. You state that the only use for the contact lens buttons is in the production of finished contact lenses. The contact lens finishing laboratories place the buttons into a CNC lathe and a base curve and a front curve are cut forming the finished device, a contact lens.
ISSUE:
Whether the subject merchandise is classified in heading 3926, HTSUS, as “other” articles of plastic, or heading 9001, HTSUS, as contact lenses.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) 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 and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
GRI 2(a) provides that “any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.”
The HTSUS provisions under consideration are as follows:
3926: Other articles of plastics and articles of other materials of headings
3901 to 3914:
3926.90: Other:
3926.90.99: Other…….
* * * * *
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:
9001.30.00: Contact lenses……..
* * * * *
Note 2 to Chapter 39 provides in pertinent part, as follows:
2. This chapter does not cover:
(u) Articles of chapter 90 (for example, optical elements, spectacle frames, drawing
instruments);
* * * * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The Explanatory Note to GRI 2 provides, in pertinent part, as follows:
(II) 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 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 ".
EN 90.01 provides:
This heading covers:
…
(D) Optical elements of any material other than glass, whether or not optically worked, not permanently mounted (e.g., elements of quartz (other than fused quartz), fluorspar, plastics or metal; optical elements in the form of cultured crystals of magnesium oxide or of the halides of the alkali or the alkaline earth metals).
Optical elements are manufactured in such a way that they produce a required optical effect. An optical element does more than merely allow light (visible, ultraviolet or infrared) to pass through it, rather the passage of light must be altered in some way, for example, by being reflected, attenuated, filtered, diffracted, collimated, etc.
…
The heading does not cover:
…
(b) Mirrors of heading 70.09, i.e., glass mirrors not optically worked. Simple plane or
even curved mirrors (e.g., shaving mirrors and mirrors for powder compacts) are therefore classified in heading 70.09.
(c) Optical elements of glass of heading 70.14, i.e., elements not optically worked
(generally moulded) (see Explanatory Note to heading 70.14).
(d) Glasses of heading 70.15, not optically worked (e.g., blanks for contact lenses or for corrective spectacle lenses, for goggles, for protecting the dials of measuring instruments, etc.).
* * * * * * *
Note 2(u) to Chapter 39 excludes articles of Chapter 90 from classification
in Chapter 39. Therefore, our analysis must begin with Chapter 90. There is no dispute that the instant articles are not contact lenses, but rather buttons used to manufacture contact lenses.
Thus, the issue to be addressed is whether the instant contact lens buttons have the “essential character” of completed or finished contact lenses and should, therefore, be classified pursuant to GRI 2(a) as if they were contact lenses in their completed or finished state. The General Rules of Interpretation do not define the phrase “essential character.” The meaning of this term in the context of GRI 2(a) may, however, be understood from an examination of the Explanatory Notes to GRI 2 (a).
The EN’s to GRI 2 (a) draw a distinction between a “blank” which possesses the essential character of an article and a “semi-manufacture[d]” item that does not have the essential character of an article. A “blank,” as defined in the EN, is 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.” “Semi-manufactures”, on the other hand, are items that do not yet have the essential shape or character of the finished articles. Examples of semi-manufactures set forth in the EN’s are: “bars, discs, tubes, etc.” Semi-manufactures are not regarded as “blanks.”
We agree that the instant articles cannot be classified in heading 9001, HTSUS, because they lack the essential character of contact lenses classifiable in that heading. The buttons conform to the description of “blanks” in the EN to GRI 2(a) only insofar as they can only be used, other than in exceptional cases, for completion into finished contact lenses. However, in their imported condition, the buttons do not possess the essential shape or outline of a finished contact lens. There is nothing in the product as imported that is evocative of a contact lens. The buttons do not possess a single defining characteristic of contact lenses; they have no lens curvature, they cannot be placed in the eye, they are not optically worked, and they produce no optical effect as required by EN 90.01 (a requirement even for those optical elements which are not optically worked). The buttons are thus semi-manufactures rather than blanks, as they lack the essential shape or character of the finished article. The ENs further note that discs are typically regarded as semi-manufactures rather than blanks, and there is no compelling reason to find an exception in this instance.
The buttons are not described by heading 9001, HTSUS, as lenses, because they lack the essential character of finished contact lenses. Additionally, the buttons are not optical elements of heading 9001, HTSUS, because they produce no optical effect. EN 90.01, in explaining the term “optical elements”, notes that optical elements are manufactured in such a way that they produce an optical effect which consists of more than merely allowing light to pass through it; passage of light must be altered in some way, for example, by being reflected, attenuated, filtered, diffracted, collimated, etc., regardless of whether or not they are optically worked. The CBP Laboratory Report confirms that the buttons do not produce any optical effect such as refraction, magnification, collimation or dispersion. As such, the subject merchandise is not an article of Chapter 90, and is not excluded from Chapter 39 by Note 2(u) to that Chapter.
The subject merchandise can be distinguished from unfinished contact lenses classified by CBP in heading 9001, HTSUS, in NY J89911, dated November 7, 2003, and NY H81137, dated May 25, 2001. NY J89911 and NY H81137 classified unfinished lenses in a more advanced stage of manufacture as contact lenses of heading 9001, HTSUS. In both cases, the lenses were already cut and shaped at the time of importation, but held inside a mold. After importation, the lenses were polished and hydrated, then removed from the mold. In their condition as imported, the merchandise already had the curvature of a lens and therefore the essential shape of the finished product. The lens curvature also produces an optical effect for the purposes of heading 9001, HTSUS.
HOLDING:
By application of GRI 1, the subject contact lens buttons are classified in
heading 3926, specifically subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2015 column one, general rate of duty is 5.3% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
EFFECT ON OTHER RULINGS:
NY N035645, dated September 9, 2008, NY M80655, dated March 17, 2006, and NY J85736, dated June 23, 2003, are hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division