G. A. F. Corp. v. United States, C.D. 4269

• Decision Date: 17 September 1971
• Docket Number: C.D. 4269
• Parties: G. A. F. CORP. <I>v.</I> UNITED STATES. GEORGE S. BUSH & CO., INC. <I>v.</I> UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

67 Cust. Ct. 167

G. A. F. CORP.

v. UNITED STATES.

GEORGE S. BUSH & CO., INC. v. UNITED STATES.

C.D. 4269

United States Customs Court, First Division.

Decided September 17, 1971.

Glad & Tuttle (George Tuttle and Hudson F. Edwards of counsel) for the plaintiffs.

L. Patrick Gray, III, Assistant Attorney General (John A. Winters and Joseph I. Liebman, trial attorneys), for the defendant.

Before WATSON, MALETZ, and RE, Judges

MALETZ, Judge:

The problem before us in this case concerns the proper tariff status of "heat filter glass" that was imported from Japan via the port of Portland, Oregon in 1967. The merchandise was classified upon importation under item 708.09 of the tariff schedules as other optical elements not mounted and assessed duty of 42.5 percent. Plaintiffs protest and claim the imports are properly classifiable under item 722.50 as parts of projectors, dutiable at 35 percent. We sustain the protest.

The relevant statutory provisions are as follows:

                Classified under
                Schedule 7, Part 2, Subpart A
                Subpart A headnotes
                      1. The provisions for optical elements in this
                    subpart do not cover —
                        (i) unmounted optical elements of glass or
                            synthetic optical crystals unless such
                            elements have been optically worked
                            (see part 3A of schedule 5)
                    *      *      *      *      *     *     *
                       2. The term "optically worked", as used in
                    this subpart, means that the glass or the synthetic
                    optical crystals have been subjected to grinding
                    or polishing incident to surface shaping for producing
                    optical properties
                        *      *      *      *      *     *     *
                    Lenses, prisms, mirrors, and other optical elements,
                     all of the foregoing whether mounted
                     or not mounted:
                        Not mounted:
                    *      *      *      *      *     *     *
                  708.09      Other ________________________    42.5% ad val.
                  Claimed under:
                Schedule 7, Part 2, Subpart F:
                Subpart F headnotes:
                  1. This subpart does not cover —
                      (i) optical elements other than photographic
                          filters (see subpart A of this
                          part);
                      *      *      *      *      *     *     *
                

                   Projectors, and combination camera-projectors,
                     with or without sound reproducing, or sound
                     recording and reproducing, systems:
                        *      *     *      *      *     *    *
                722.50   Parts of any of the foregoing projectors or
                           camera-projectors ________________________   35% ad val.
                

The imports consist of small disks made of heat filtering glass and are used to trap infra-red or heat rays in various types of film projectors so as to protect the film from overheating and consequent damage. Thus, the imports are used in plaintiff G.A.F.'s 100 and 300 watt slide projectors and in its 8mm movie projector which comes equipped with a still feature. In the slide projectors, the transparency or slide, when in a viewing position, is exposed to the heat of the projector bulb. This heat would cause damage to the film save for the interposition of the imported heat filter between the bulb and the slide which traps the heat from the high wattage of the light and permits only the visible light to pass through.

In the 8mm motion picture projector, when a moving picture is actually being projected, the heat filter is not interposed since the continuous motion of the film prevents it from being damaged by heat. The still feature in that projector, however, gives the user the option of stopping the action and viewing a single motion picture frame as a still. When this is done, the stationary film is subjected to the heat of the projector bulb and would be damaged without the heat filter to protect it. For that reason, as the control knob is turned to employ the still feature, it simultaneously pops the heat filter into position between the projection bulb and the film to protect the film from damage. Subsequently, when the motion picture film viewing is resumed, the heat filter is positioned back into its storage position away from the light and the film.

Light, it is to be noted, consists of electro-magnetic radiation of different wave lengths. Visible light has wave lengths which are between 4000 and 7500 angstrom units. Light waves shorter than this — i.e., from 2000 to 4000 angstroms — are known as ultra-violet rays and are invisible, while those that are longer — i.e., from 7500 to 10,000 angstroms — are also invisible and are known as infra-red rays or heat. These longer infra-red rays (as we have seen) are trapped by the imported heat filter glass while the shorter wave lengths of visible light are allowed to go through unimpeded.

The present importations were ground and polished prior to their shipment to the United States, the purpose being to prevent diffusion and distortion which would impede the transmission of visible light through the filter. Further, glass of the same type as that used in the imported heat filter is also used in the glazing of certain parts of buildings to trap infra-red rays from the sun and thus prevent rooms from overheating.

Turning now to the legal aspects, in order for an article to be classified under item 708.09 as an unmounted "optical element," schedule 7, part 2, subpart A headnote 1(i) (which has been previously quoted) requires (1) that the article consist of an unmounted optical element; and (2) that it be composed of "optically worked" glass or synthetic optical crystals, or of any other material whether or not "optically worked." As the Tariff Classification Study, Schedule 7 (1960) points out (p. 141):

Items 708.05 through 708.09 embrace unmounted optical elements, other than lenses, used in all kinds of instruments, and composed of optically-worked glass or synthetic optical crystals, or of any other material whether or not optically worked. Such optical elements include prisms, presently dutiable as scientific glassware in paragraph 218(a) or as parts of various optical instruments in paragraph 228; mirrors, currently classified under a number of provisions in paragraph 228 (b); and other optical elements, such as optical flats, diffraction gratings, and polarizing elements, now dutiable under a number of provisions.

Against this background, the basic issue in the case is whether or not the imported heat filter glass disk constitutes an "optical element" within the meaning of item 708.09. In this connection, the common meaning of the term "optical" has been a frequent subject of judicial interpretation particularly as it relates to optical instruments and the courts have consistently held that the term relates to the phenomena of light and vision, and that an optical instrument is one that aids human vision or creates for inspection a picture or image of some object. As the court stated in United States v. Bliss & Co. et al., 6 Ct. Cust. Appls. 433, 440, T.D. 35980 (1915):

The fact that light is the foundation of vision is doubtless the reason why the science of optics is said to relate not only to the organs of vision but to light itself and doubtless accounts for what we think is the fact, that in the common understanding of the term "optical" relates to the phenomena of both light and vision. They are inseparable, because light itself is "the sensation of which one becomes conscious through the optic nerve."

The importations here are not "optical instruments" so far as the phenomena of vision is embraced in the meaning of the word "optics"; that is, they do not aid vision, nor are they so intended.

See also, e.g., Clara M. Ferner, etc. v. United States, 23 Ct. Cust. Appls. 62, T.D. 47735 (1935); F. W. Myers & Co., Inc. v. United States, 48 Cust. Ct. 420, Abstract 66694 (1962); Henry Wild Surveying Instrument...