CLA-2 OT:RR:CTF:EMAIN H296541 SKK
Ann M. Nagele
PerkinsCoie
1201 Third Avenue
Suite 4900
Seattle, WA 98101-3099
RE: Reconsideration of HQ H050836; Classification of contact lens buttons.
Dear Ms. Nagele:
This is in response to your letter, dated March 27, 2018, on behalf of your client, Contamac US, Inc. (Contamac), in which you request reconsideration of Headquarters Ruling Letter (HQ) H050836, dated June 2, 2015, in which U.S. Customs and Border Protection (CBP) classified “contact lens buttons” under the Harmonized Tariff Schedule of the United States (HTSUS). HQ H050836 revoked New York Ruling Letter (NY) N035645, dated September 9, 2008, NY M80655, dated March 17, 2006, and NY J85736, dated June 23, 2003 (the latter two cases issued to Contamac).
We have reviewed HQ H050836 and determined that it is correct. For the reasons set forth below, we are affirming that ruling. We are also returning the merchandise sample included with your reconsideration request.
The contact lens buttons at issue in the three rulings revoked by HQ H050836 are described as follows:
NY N035645:
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:
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. NY J85736: 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.
The HTSUS provisions under consideration in this reconsideration 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: 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 EN 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.
* * * * *
At issue in this request for reconsideration is whether the subject merchandise is classified in heading 3926, HTSUS, as “other” articles of plastic, or in heading 9001, HTSUS, as unfinished contact lenses pursuant to GRI 2(a). As Note 2(u) to Chapter 39, HTSUS, excludes articles of Chapter 90, the initial determination is whether the subject buttons are classified as contact lenses of heading 9001, HTSUS.
In HQ H050836, which revoked NY J85736, NY M80655, and NY N035645, CBP classified the subject contact lens buttons in heading 3926.90.99, HTSUS. CBP determined that the subject merchandise did not have the essential character of finished contact lenses of heading 9001, HTSUS, because, in their condition as imported, they did not have the shape of the finished product and were not ready for direct use. Additionally, CBP determined that the subject merchandise was not an optical element that produced an optical effect.
In its request for reconsideration of HQ H050836, Contamac argues that the subject merchandise is properly classified in subheading 9001.30.00, HTSUS, as incomplete or unfinished contact lenses by virtue of GRI 2(a). Contamac states that the subject buttons are “blanks” for classification purposes in that they are nearly complete at their time of importation. In this regard, Contamac submits that the subject buttons possess the essential character of finished contact lenses in that they have the approximate size and shape of a finished contact lens (i.e., round shaped and trimmed to a specific diameter). Contamac also states that the buttons possess the following optical effects: “Refractive index” (which measures the bending of light as it passes through two transparent media of different densities); “Wetting angles” (which measure surface wettability and how a liquid spreads across a surface); “Oxygen permeability” (which measures the amount of oxygen that passes through the contact lens to the eye), and; “Modulus” (which measures the ability of a lens material to align to the ocular surface and resist deformation under tension).
Contamac further notes that although HQ H050846 revoked three rulings (NY N035645, NY M80655 and NY J85736), only the sample at issue in NY N035645 was submitted to CBP’s Laboratories and Scientific Services (lab report #SP20100152) in which it was determined that the merchandise did not produce an optical effect. Contamac states that the contact lens buttons at issue in NY M80655 and NY J85736 are not substantially similar to the merchandise at issue in NY N035645.
In applying the foregoing legal criteria and EN guidelines to the instant merchandise, we find that the instant articles cannot be classified in heading 9001, HTSUS, because they lack the essential character of finished contact lenses and they do not produce any optical effects. The subject contact lens buttons conform to the description of "blanks" in the EN to GRI 2(a) to the extent that they can only be used, other than in exceptional cases, for completion into finished contact lenses. Otherwise, their other characteristics do not satisfy the description of “blanks” for purposes of GRI 2(a). In their imported condition, the buttons do not possess the essential shape or outline of a finished contact lens. While they are round and trimmed to a specific diameter relating to the finished dimensions of a contact lens, they are not curved in a manner that approximates the essential shape or outline of a finished contact lens and they are not ready for direct use in the eye. Nor do the subject buttons produce any of the optical effects set forth in the EN to heading 90.01. As regards the buttons’ various indices, referenced above, we view these as material characteristics that affect suitability for use in contact lenses, and not as optical effects that alter the passage of light.
Lastly, the subject merchandise at issue in HQ H050836 can be distinguished from the 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 articles at issue are distinguished from those at issue in NY J89911 and NY H81137 in that they are cut and shaped after importation.
For the aforementioned reasons, we hereby affirm HQ H050836. Accordingly, the
subject contact lens buttons remain classified in heading 3926, HTSUS, specifically in subheading 3926.90.99, HTSUS, as “[O]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other… .”
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division