Schott Optical Glass, Inc. v. United States

• Decision Date: 21 February 1980
• Docket Number: Appeal No. 79-18.
• Citation: 612 F.2d 1283
• Parties: SCHOTT OPTICAL GLASS, INC., Appellant, v. The UNITED STATES, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

612 F.2d 1283

SCHOTT OPTICAL GLASS, INC., Appellant, v. The UNITED STATES, Appellee.

Appeal No. 79-18.

United States Court of Customs and Patent Appeals.

December 20, 1979.

Rehearing Denied February 21, 1980.

Richard C. King, Fitch, King & Caffentzis, New York City, attorney of record for appellant.

Alice Daniel, Acting Asst. Atty. Gen., Washington, D.C., David M. Cohen, Director, Commercial Litigation Branch, Joseph I. Liebman, Atty. in Charge, Madeline B. Kuflik, Dept. of Justice, Civil Div., New York City, attorney of record for appellee.

Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER and WATSON,^* Judges.

MILLER, Judge.

This is an appeal from the judgment of the United States Customs Court in Schott Optical Glass, Inc. v. United States, 82 Cust.Ct. ___, 468 F.Supp. 1318, C.D. 4783 (1979), which affirmed the denial by the Customs Service of Schott's protest to classification of its imported merchandise as "optical glass." We affirm.

BACKGROUND

The imported merchandise consists of pieces of glass which are six and one-half inches square and colored in shades of red, green, blue, yellow, and gray. It was classified under Tariff Schedules of the United States ("TSUS") Item 540.67¹ as "optical glass." Schott claimed classification as colored or special flat glass under Item 542.92.²

From its examination of the legislative history of TSUS 540.67 and pertinent case law the Customs Court concluded that glass which is: (a) very high quality, (b) used for optical instruments, and (c) capable of performing an optical function meets the definition of "optical glass" for tariff purposes, citing Semon Bache & Co. v. United States, 25 CCPA 239, T.D. 49339 (1937), G.A.F. Corp., George S. Bush & Co. v. United States, 67 Cust.Ct. 167, C.D. 4269 (1971), and Ednal Co. v. United States, 6 Cust.Ct. 552, Abs. 45423 (1941). The Customs Court declared that, based on the presumption of correctness that attaches to the classifying officer's decision, the foregoing indicia were presumed to be applicable to the involved merchandise; further, that the evidence supported the presumption. It noted that appellant was not in disagreement with these indicia, but, rather, had argued that an additional factor must be present, namely: the glass must have a refractive index and dispersion which are known and controlled to very close tolerances (a degree of four to six decimal places). On this issue, the Customs Court held that appellant failed to sustain its burden of proof by a preponderance of the credible evidence.

OPINION

It is well settled in customs law that, when not otherwise defined in the TSUS or indicated by legislative history, the correct meaning of a term in a tariff provision is the common meaning understood in trade and commerce. United States v. Rembrandt Electronics, Inc., 542 F.2d 1154, 64 CCPA 1 (1976), Barnebey-Cheney Co. v. United States, 487 F.2d 553, 61 CCPA 10 (1973), and Trans-Atlantic Co. v. United States, 471 F.2d 1397, 60 CCPA 100 (1973). It is also well settled that what constitutes the common meaning of a tariff term is not a question of fact but a question of law. In ascertaining the common meaning of a tariff term, the court may consult dictionaries, scientific authorities, and other reliable sources of information. Trans-Atlantic Co. v. United States, supra; Nomura (America) Corp. v. United States, 299 F.Supp. 535, 62 Cust.Ct. 524 (1969), aff'd 453 F.2d 1319, 58 CCPA 82 (1971). Congress is presumed to attach the common meaning to a term in a tariff provision, and the legislative history may be dispositive of an issue over common meaning. Certified Blood Donor Services, Inc. v. United States, 62 CCPA 66, 70, C.A.D. 1147 (1975).

TSUS General Rule of Interpretation 10(c) provides that:

(c) an imported article which is described in two or more provisions of the schedules is classifiable in the provision which most specifically describes it; but, in applying this rule of interpretation, the following considerations shall govern:

(i) a superior heading cannot be enlarged by inferior headings indented under it but can be limited thereby;

(ii) comparisons are to be made only between provisions of coordinate or equal status, i. e., between the primary or main superior headings of the schedules or between coordinate inferior headings which are subordinate to the same superior heading . . ..

Applying this rule, it is clear that the meaning of "other optical glass" in 540.67 cannot be broader than "optical glass in any form" in its superior heading. It is also clear that the phrase "in any form" refers to the physical shape of the glass rather than to a material or quality of construction. United States v. Central Scientific Co., 21 CCPA 214, T.D. 46749 (1933).

In considering the common meaning of "optical glass," we note that the Tariff Classification Study, Schedule 5, Part 3, 128 (1960), states that 540.67 "covers: (1) prisms and optical elements other than lenses, of glass, not optically worked, now dutiable . . . as scientific articles of glass; (2) optical glass other than in the form of lenses or prisms; (3) synthetic optical crystals other than in the form of ingots; and (4) polarizing material of any substance in sheets or plates." Regarding the latter it stated:

The existing tariff has no specific provision for polarizing material in sheet or plate form. . . . The sheets or plates are cut to shape to make polarizing elements for microscopes and other optical instruments, for sunglasses, and for spectacles for viewing three-dimensional movies, and for other uses. . . . It is possible that they would be classifiable in glass provisions or by similitude to glass articles. They are therefore being assimilated in the schedule at this point, at the rate applicable to optical glass.

The description of "optical glass" in the Summaries of Trade and Tariff Information, Schedule 5, Vol. 4, 33 (1968), "covers not-optically-worked³ articles such as optical glass in any form . . ." (emphasis added and footnote omitted). The Summaries also state: "optical glass is clear, high-quality glass that meets precision specifications as to its chemical composition, homogeneity, and freedom from physical defects." It is silent on refraction and dispersion properties.

The Encyclopedia Brittanica, Vol. 10 (1955), 419B, cited by the Customs Court, states:

Optical glass differs from other types of glass in two essential characteristics. The first of these is its freedom from imperfections, of which the most common are unmelted particles, commonly called stones; bubbles; and chemical inhomogeneity, which produces regions or streaks of differing refractive index called striae. The elimination of striae is the most difficult problem in the manufacture of optical glass. The glass must also be physically homogeneous and free from mechanical strain, which is effected by an annealing treatment under conditions determined by the composition of the glass.

The second fundamental characteristic of optical glass is that it can be obtained in a wide range of optical properties. For the manufacture of corrected lens systems, glasses must be available having not only a wide range of refractive index (nD) but also of dispersion; and for many special cases there is required knowledge not only of the mean dispersion (nFnC) but also of the partial dispersion (nD-nC,

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