CLA-2 OT:RR:CTF:TCM H008951
Port Director
Port of Hartford
U.S. Customs and Border Protection
Bradley International Airport International Arrivals Building Windsor Locks, CT 06096
RE: Creation® ceramic dental powders and liquids;
AFR of Protest no. 0411-07-100002
Dear Port Director:
The following is our decision regarding the Application for Further Review of Protest no. 0411-07-100002, filed by counsel, on behalf of Jensen Industries, Inc. (“Jensen”) on January 16, 2007, regarding the classification of Creation® powders and liquids, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The instant merchandise consists of kits and loose vials of powders and liquids of dental ceramic materials. The Material Safety Data Sheet (MSDS) for Creation® Make Up Instant stains confirms that the Willi Geller Make Up Instant Stains are glass ceramic dental porcelain powder consisting of silica, alumina, boron oxide, potassium oxide, sodium oxide, calcium oxide, and pigments.
The entries consist of the above powders in loose bottles and in kits. Each kit consists of a small artist’s type brush and one each of the individual components: nine different colored 3 gram bottles of ceramic powder, a 3 gram bottle of ceramic powder glaze, a ceramic plate shaped like a palette with the representative colors fired into it, and make up fluid in a 25 ml squeeze bottle containing 90% Propylene Glycol (CH3CH(OH)CH23OH) and 10% water.
The product is used to add realistic colorations and imperfections to ceramic dental restorations. Once the porcelain has been built up and fired to create a realistically sized and shape replica of a tooth, make up powders are used to add colors and imperfections to increase the realism of the restoration. The powders are mixed with the make up fluid to create the color needed into a paint type consistency. It is then ‘painted’ onto the porcelain surface of the restoration to create the intended stain, crack shadow or other feature. The additional powders and make up fluid are “loose” quantities of the kit components.
Other powders for which CBP received an MSDS are Willi Geller Creation® CC--Dentine, Bleach Dentine,Transpa OT/TI, Opak Dentine OD, Gingival, Approx. Dentine, Enamel, Clear, Window, Enamel Tran. Si/PS, HT/SP/MI Powders. The MSDS states that the merchandise is used as a “Dental Ceramic” containing the following ingredients: aluminum oxide, potassium oxide, sodium oxide, lithium oxide, magnesium oxide, calcium oxide, barium oxide, boron trioxide, titanium dioxide, zirconium oxide, phosphorus pentoxide, other oxides, tin dioxide and various pigments. The MSDS also states that:
The material is a glassy inorganic solid that contains the above listed components. The product obtained by thermal treatment is inert and exhibits completely different properties as compared to the above listed single components. Coloration is achieved by treatment with inorganic pigments.
The 15 entries subject to this protest were entered between February 22, 2005 and April 17, 2006, in subheading 3006.40.00, HTSUS, as dental cements and 6815.99.40, HTSUS, as ceramic articles. CBP filed a “Request for Information” (CBP Form 28) for two entries to which Protestant responded with additional information. Based upon the additional information, the entries were rate advanced and liquidated between July 6, 2006 and December 13, 2006, in subheading 3207.20.00, HTSUS, as ceramic glazes.
ISSUE:
Whether dental ceramic powders, make-up fluid and kits of same with enclosed ceramic color coded plate and artist brush are classified in heading 9021, HTSUS, as “artificial teeth and parts and accessories thereof” or as to their material component as ceramic glazes in heading 3207.20.00, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed on January 16, 2007, within 180 days of liquidation with regard to 13 entries liquidated after July 20, 2006. The protest is untimely filed with respect to the two entries liquidated on July 6, 2006. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 0411-07-100002 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by CBP or the courts. Specifically, it is alleged that the protest involves questions of law or fact which have not been ruled upon by the Commissioner of Customs.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.
The HTSUS subheadings under consideration are as follows:
3207 Prepared pigments, prepared opacifiers and prepared colors, vitrifiable enamels and glazes, engobes (slips), liquid lustres and similar preparations, of a kind used in the ceramic, enamelling or glass industry; glass frit and other glass, in the form of powder, granules or flakes:
3207.20.00 Vitrifiable enamels and glazes, engobes (slips) and similar preparations.
* * * * *
9021 Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof:
Artificial teeth and dental fittings, and parts and accessories thereof:
9021.21 Artificial teeth and parts and accessories thereof:
9021.21.80 Other
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System should be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 32.07 states, in pertinent part, the following:
This heading covers a range of preparations used in the ceramic industry (china, earthenware, etc.), in the glass industry or for colouring or finishing metal articles.
(2) Vitrifiable enamels and glazes are mixtures of silica with other products (feldspar, kaolin, alkalies, sodium carbonate, alkaline-earth metal compounds, lead oxide, boric acid, etc.) giving a smooth surface, either matt or glossy, by vitrification under heat. In most cases some of the constituents have been fused together in a preliminary process and are present in the mixture in the form of powdered frit (see below).
They may be transparent (whether or not coloured) or rendered opaque by the addition of opacifiers or pigments; sometimes substances (e.g., titanium or zinc oxides) are added which produce decorative crystalline effects on cooling after the firing. These vitrifiable enamels and glazes are generally in the form of powders or granules.
These products are used in the preparation of coatings for ceramic, glass or metal articles as well as for other purposes. For example, frit is used in the preparation of the vitrifiable products referred to in paragraph (2) above. Glass powder and granules are sometimes sintered to form discs, plates, tubes, etc. for laboratory use.
EN 90.21(III) states, in pertinent part, the following:
(III) ARTIFICIAL LIMBS, EYES, TEETH AND OTHER ARTIFICIAL PARTS OF THE BODY
These wholly or partially replace defective parts of the body and usually resemble them in appearance. They include:
* * * * *
(B) Artificial teeth and dental fittings, for example :
(1) Solid artificial teeth, . . . .
(2) Hollow artificial teeth, . . . .
(3) Dentures, . . . .
(4) Other articles such as, prefabricated metal crowns (gold, stainless steel, etc.) used for the protection of real teeth; cast tin bars (“heavy bars”) for weighting and increasing the stability of dentures; stainless steel bars for reinforcing vulcanised rubber dental plates; various other dentists’ accessories, clearly identifiable as such, for making metal crowns or dentures (sockets, rings, pivots, hooks, eyelets, etc.)
We note that there is no dispute that the Make Up Instant kits are classifiable pursuant to GRI 3(b) which provides: "Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable." Further, it is agreed that the essential character of the kit is imparted by the dental ceramic powder. See EN(VII) to GRI 3(b). Therefore, whether kit or powder, the issue is the classification of the dental ceramic powders.
Protestant argues that the instant ceramic powder is a “part” of artificial teeth classifiable in heading 9021, HTSUS, because “it is in an advanced state of manufacture; its identity is fixed with certainty; it is dedicated to a final use; and the post-importation processing is insignificant. Protestant asserts that the dental ceramic powders are used solely to create artificial teeth and are therefore parts of artificial teeth.
The classification of parts was discussed in Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997) (hereinafter “Bauerhin”), in which the court explained:
As set forth in Willoughby Camera, ‘an integral, constituent, or component part, without which the article to which it is to be joined could not function as such article’ is surely a part for classification purposes (citations). However that test is not exclusive. Willoughby Camera does not address the situation where an imported item is dedicated solely for use with the article. Pompeo addresses that scenario and states that such an item can also be classified as a part (citations).
Reconciling Willoughby Camera with Pompeo, we conclude that where, as here, an imported item is dedicated solely for use with another article and is not a separate and distinct commercial entity, Pompeo is a closer precedent and Willoughby Camera does not apply […] Under Pompeo, an imported item dedicated solely for use with another article is a “part” of that article within the meaning of the HTSUS.
Protestant argues that the instant merchandise is substantially similar to that discussed in New York Ruling Letters (NY) J89431, dated October 7, 2003, and NY K81158, dated November 20, 2003. We note that in Customs Bulletin Vol. 44 no. 14, dated March 31, 2010, CBP modified NY J89431 and K81158, with respect to the classification of Everest® T and G blanks in subheading 9021.21.80, HTSUS, which provides for “other” artificial teeth and parts and accessories thereof. We stated that “The referenced rulings are incorrect because the titanium and glass ceramic cylinders do not have the essential character of a finished dental artifice.” Notwithstanding the modification, we do not agree that the instant merchandise is similar to the Everest ceramic titanium and glass blanks. The materials in those cases were formed discs ready for milling to shape. The blanks were thus unfinished teeth. The merchandise here, powders, fluids and kits including brushes for application is not substantially similar to the ceramic titanium and glass discs in the aforementioned rulings in form or function.
Protestant also argues that its merchandise is used for crowns, fixed bridges, veneers, and inlay and onlay restorations such that it should be classified as artificial teeth of heading 9021 in accord with NY 800171, dated July 20, 1994. The merchandise in that ruling was fully formed prosthetic dental devices made of metal, porcelain or a combination of the two that was to be cemented to the existing tooth structure. The instant merchandise, while used cosmetically in the manufacture of a dental device, is not in itself a crown, bridge, inlay, onlay or veneer and is therefore distinguishable from the merchandise discussed in NY 800171.
Moreover, the powders are unlike the dental implants found to be parts of artificial teeth in Headquarter’s Ruling Letter (HQ) 087461, dated January 18, 1991. There, the merchandise was used as a fitting to the artificial tooth. It was necessary for the tooth to remain in place and be useable to the wearer. The instant ceramic powders are layered on a core. The instant merchandise is therefore completely distinguishable from the implants of HQ 087461 and cannot be described as a part of an artificial tooth.
The ceramic powders are not used solely or principally with artificial teeth. They are used on a frame to create an artificial tooth or dental fitting. They are the material for the creation of the tooth. Since no tooth has been created at the time of entry, there is no article of which the dental ceramic powders at issue can be a part under the Bauerhin analysis. Furthermore, the merchandise here is a separate and distinct commercial entity, namely a ceramic powder. Therefore, the merchandise at issue is not classifiable in heading 9021, HTSUS.
Moreover, additional U.S. Rule of Interpretation 1(c), HTSUS, “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” Accordingly, if the merchandise is classifiable in heading 3207, HTSUS, it cannot be classified as a part in heading 9021, HTSUS.
The term "vitrifiable" as it appears in heading 3207, HTSUS, is not defined in the HTSUS or in the ENs. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common or commercial meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)).
The word vitrify means “to change or make into glass or a glassy substance, especially through heat fusion.” http://www.thefreedictionary.com/Vitrified. The ENs also explain that vitrifiable enamels and glazes are mixtures of silica with other products given a smooth surface by vitrification under heat. The EN description comports with the dictionary definition.
While Protestant asserts that the instant merchandise is not an enamel coating, much of the evidence shows the contrary. Some of the invoiced items are called “enamel”, as well as items for which the MSDS information has been provided. The brochure on Creation’s website for Creation Press-ceramics zirconium oxide CP ZI describes the building up or coating of each layer and the subsequent, staining, glazing and polishing that occur around the core shape of the artificial tooth or other restoration. www.creation-willigeller.de/downloads/manual-CPZI-En100dpi.pdf. Protestant also describes the layering process.
Moreover, the heading text includes the terms “and similar preparations.” To the extent that some of the merchandise covered by the protest is not an enamel ceramic powder, but is of similar composition to the enamels as shown by the chemical composition listing on the MSDS sheets, also used in the layering process of creating a ceramic article, the merchandise is a similar preparation. Protestant has provided no evidence to the contrary. The instant merchandise consists of silica with metal oxides and other substances in the form of a powder ceramic. It is fired to become smooth and glassy. Some are used with opacifiers and pigments in conjunction thereto. Hence, the instant merchandise is fully described by heading 3207, HTSUS and comports with the exemplar listed in EN 32.07.
HOLDING:
Pursuant to GRI 1, the dental ceramic powder, and pursuant to GRI 3(b) the kits, are classified in heading 3207, HTSUS. Specifically, they are classified in subheading 3207.20.00, HTSUS, which provides for: “Prepared pigments, prepared opacifiers and prepared colors, vitrifiable enamels and glazes, engobes
(slips), liquid lustres and similar preparations, of a kind used in the ceramic, enamelling or glass industry; glass frit and other glass, in the form of powder, granules or flakes: Vitrifiable enamels and glazes, engobes (slips) and similar preparations.” The column one, general ate of duty is 4.9% ad valorem.
The protest is denied pursuant to 19 C.F.R 174.13(a)(5)(6) for lack of a specific description of the merchandise at issue for which no chemical composition, description or sample was provided.
Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of this letter, the Office of International Trade will make this letter available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division