CLA-2 RR:CR:GC 960896 HMC
Port Director of Customs
4735 Oakland St.
Denver, CO 80239
RE: Protest 3307-97-100106; Glass Filters; Subheading 7004.20.20; Chapter 70, Note 2; General Explanatory Note to Chapter 70; Explanatory Notes 70.04 and 70.14; Other Drawn Glass, in Sheets; Optical Elements of Glass.
Dear Port Director:
This is our decision on Protest 3307-97-100106, filed against your classification of various glass filters. The entries under protest were liquidated on May 9, 1997, May 23, 1997, and July 11, 1997, and this protest timely filed on August 4, 1997.
FACTS:
The merchandise under protest consists of various glass filters, referred to as the dichrolight, DT, DC, UV, Calflex, and Silflex filters. They are described as follows:
(a) Dichrolight Filters - these filters include dichroic lighting filters and dichroic color filters, also known as DT filters. The dichrolight filters are additive and substractive color filters, coated with titanium oxide and silicon oxide to produce and reflect regions of the visible spectrum. These filters are designed to meet the requirements of theater, discotheque, stage and TV lighting. Dichrolight filters are also used with color changers, fibre optics and display lighting generally. The importer, by telephone conversation, confirmed that the coating blocks specific wavelengths of light and lets others through in order to obtain a specific color of light.
(b) Color Separating Mirrors - also known as DC mirrors, are described as absorption free interference systems of extremely hard, chemically resistant oxide films. They guarantee a loss-free separation or mixture of the primary colors blue, green and red. Literature provided states that Dichroic or DT color filters and the DC mirrors are used with color TV cameras; film printers; telecine equipment; color printers; color enlargers; signal lighting; studio illumination; head-up displays and control and sorting of objects by their color (for instance fruit, textiles).
(c) Cold Light Mirrors KS 93 - have very high reflectance of visible wavelengths and a transmittance of more than 80% of the unwanted, heat producing infrared radiation through the rear of the mirror. The KS 93 mirrors are used in applications such as surgical and dental lighting, film and photographic apparatus, display and task lighting as well as optical and scientific instruments.
(d) Heat Protection Filters - these filters include the Calflex family of filters, designed to equal the heat suppression properties of absorbing glass without the disadvantages of its restricted size and low visible transmission. They block infrared energy in the 750-3000 nanometer range.
(e) UV Blocking Filters - these filters are used to protect UV sensitive materials such as foodstuffs, certain plastics and works of art. They block almost completely up to 380 nm of harmful wavelengths and transmit “high visible” light.
(f) Front Surface Mirrors - are made with a metallic film deposited onto the glass surface which faces the incident light. The metallic surface is coated with a thin, transparent protective film for protection against atmospheric influences and mechanical damage. Aluminum is generally used as the reflecting metal. There are various types of front surface mirrors for different spectral ranges (i.e., visible light, UV, infrared, far and near infrared applications).
(g) Iralin Filters, including the Iralin 85 and Iralin 185L - have a non-reflecting coating to reduce glare and light reflections by eliminating residual bouncing light. It enhances the projection of an image. These filters are often used in the projection and photography industries.
(h) Conductin - is a trade name product that consists of an absorbent layer of indium-tin-oxide (ITO). The manufacturer’s literature states that this is a coating used for applications in the electro-optical industries. The ITO coating provides high transmission and low specular reflectance.
The merchandise was entered under a provision for drawn glass and blown glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer, but not otherwise worked in subheading 7004.20.20 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the entries were liquidated under subheading 7014.00.20, HTSUS, as signaling glassware and optical elements of glass (other than those of heading 7015), not optically worked.
The 1997 provisions under consideration are as follows:
7004 Drawn glass and blown glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer, but not otherwise worked:
7004.20 Glass, colored throughout the mass (body tinted), opacified, flashed or having an absorbent, reflecting or non-reflecting layer:
Other:
7004.20.20 In rectangular shape...1.1¢/kg + 1.8%
* * * *
7014.00 Signaling glassware and optical elements of glass (other than those of heading 7015), not optically worked:
Optical elements:
7014.00.20 Other...7%
ISSUE:
Whether the glass lenses are classifiable as glass, colored throughout the mass (body tinted), opacified, flashed or having an absorbent, reflecting or non-reflecting layer under subheading 7004.20.20, HTSUS, or as optical elements of glass, not optically worked under subheading 7014.00.20, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
Protestant claims that the merchandise is classifiable under subheading 7004.20.20, HTSUS, because this subheading exactly describes the glass lenses; that the products have no relationship to subheading 7014.00, HTSUS. For the following reasons, we find that the subject merchandise is more specifically described by heading 7014, HTSUS.
Chapter 70, note 2, HTSUS, provides as follows:
For the purposes of headings 7003, 7004 and 7005:
(a) Glass is not regarded as "worked" by reason of any process it has undergone before annealing;
(b) Cutting to shape does not affect the classification of glass in sheets;
(c) The expression "absorbent, reflecting or non 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 which improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 70.04 states, at page 1013, that [heading 7004] is restricted to drawn glass and blown glass which must be unworked and in sheets (whether or not cut to shape). This EN further states that the glass of this heading may be colored or opacified in the mass, or flashed with glass of another color during manufacture or may be coated with an absorbent, reflecting or non-reflecting layer. The EN also explains that drawn glass and blown glass are frequently used in the form in which they are originally produced, without any further working. In addition to their main use as glass for windows, doors, display cases, greenhouses, clocks, pictures, etc., these types of glass are also used as parts of articles of furniture, for photographic plates, plain spectacle glass, etc.
We find that heading 7004, HTSUS, describes the merchandise. The glass lenses are subjected to a drawing process and are coated with reflecting and non-reflecting layers. Also the glass is not worked because it is not polished or ground.
This notwithstanding, we also find that the merchandise is described by heading 7014, HTSUS. EN 70.14 states, at page 1022, that heading 7014 covers optical elements of glass provided they have not been optically worked. This EN provides that heading 7014 includes elements which are manufactured in such a way that they produce some required optical effect without being optically worked. These articles include mainly lenses and similar articles for automobile headlamps, parking lights, direction indicating lights, cycle rear lights, road traffic lights, certain buoys, spotlight bulbs, pocket lamps, electric torches, switchboards or panel lights, and also certain common magnifying glasses. EN 70.14 defines optical working as a process of grinding the surfaces first with coarse and then with gradually finer abrasives. The successive operations are thus roughing, trueing, smoothing and polishing.
Neither the Chapter or Section Notes nor the ENs explain the meaning of the term “optical elements.” A tariff term that is not defined in the text of the HTSUS or the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
In Celestaire, Inc. v. The United States, 928 F. Supp. 1174, 1177 (CIT 1996), the Court of International Trade noted that the term “optical elements” included those which act upon, deal with, or route rays of light. The term “optical” is defined in Webster’s II New Riverside University Dictionary 825 (1988) as: “1. Of or relating to sight. 2. Designed to assist vision3. Of or relating to optics. 4. Relating to or utilizing light 5. Using light-sensitive devices .” The term “element” is defined as “1. A fundamental, irreducible constituent.” These definitions are similar to the EN’s definition that optical elements produce some required optical effect. Based on these authorities, it is Customs view that one of the functions performed by optical elements is manipulation of light to create an optical effect. We note that 4 McGraw-Hill Encyclopedia of Science and Technology 155 (7th ed.) states that a color filter is “[a]n optical element that partially absorbs incident radiation, often called an absorption filter. The absorption is selective with respect to wavelength, or color, limiting the colors that are transmitted by limiting those that are absorbed. Color filters absorb all the colors not transmitted. They are used in photography, optical instruments, and illuminating devices to control the amount and spectral composition of light.” The glass lenses, in this case, utilize light to create different colors by reflecting, dividing or absorbing different wavelengths of the visible spectrum. Furthermore, the merchandise is like the exemplars the ENs provide. The subject lenses are optical elements for the light and photographic industry, used with spotlight bulbs and optical equipment like projectors and photocopiers. We thus find that the glass lenses are optical elements described by heading 7014, HTSUS.
GRI 3(a) states in part that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. Classification turns on which heading is more definite or specific. The more specific heading will prevail over a more general heading. Courts have applied the “more difficult to satisfy” test to determine the more specific of competing tariff provisions. See Mitsui Petrochemicals (America), Ltd. v. U.S., Slip Op. 97-108 (CIT 1997), and Orlando Food Corp. v. US, Slip Op. 97-1335 (Fed. Cir. 1998), citing United States v. Siemens Am., Inc., 68 CCPA 62, 68, 653 F.2d 471, 477 (1981).
Heading 7014, HTSUS, which provides for optical elements of glass, is more specific than heading 7004, which covers drawn glass and blown glass in sheets. The requirements of heading 7014 are more difficult to satisfy than those of heading 7004 because the items described in heading 7014 may not simply have an absorbent, reflecting or non-reflecting layer. Articles of heading 7014 must perform the additional task of providing some optical effect. Therefore, the glass lenses are described by heading 7014, HTSUS. They are classifiable under subheading 7014.00.20, HTSUS.
HOLDING:
Under the authority of GRI 3(a), the glass lenses are classifiable in subheading 7014.00.20, HTSUS, as other optical elements of glass. The 1997 rate of duty is 7%.
This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, 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.
Sincerely,
John Durant, Director
Commercial Rulings Division