CLA-2 OT:RR:CTF:TCM H014347 RM
Port Director
Port of San Diego
United States Customs and Border Protection
1240 North Harbor Drive
San Diego, CA 92101
RE: Glass Nail Files; Application for Further Review of Protest No. 2506-07-100009
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2506-07-100009, timely filed by counsel on behalf of Ilona Zatkova, d.b.a. La Mont, concerning the classification of glass nail files under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
This protest concerns glass nail files imported from the Czech Republic in a variety of unit sizes, ranging from three and a half to seven and a half inches long. Unit values vary depending on the size, but are priced between thirty cents and three dollars per nail file. In an affidavit submitted as part of the AFR, Protestant declared that the manufacturing process for the nail files is as follows:
A sheet of float glass is purchased by the manufacturer.
A chemical process comprised of hydrofluoric acid is used to roughen a portion of the glass body and produce an abrasive surface. The chemical process includes selective removal of ions from the surface layers of the glass material.
The final shape of the product is formed with the aid of a grinding wheel. Grinding of the edges first forms the shape and, second, makes edges rounded off. The handle is formed out of the part of the glass body that is protected during the chemical reaction.
A final step of chemical hardening is used to increase the rigidity and durability of the product.
The glass nail file is made of float glass, not blown or pressed glass. The name “float” is used to describe a method or technology for flat glass production. Float technology is the most modern and commonly used production of flat glass.
This technology involves pouring hot liquid onto a layer of melted liquid tin in order to achieve an absolutely flat and smooth glass sheet. Float technology is the most modern and commonly used for production of flat glass.
In addition, the nail files are decorated with colors, engraved, and/or hand painted. The coarseness of the files is attributed to the structure of the glass; they are not coated or impregnated with an abrasive powder or grain. The U.S. Customs and Border Protection (“CBP”) laboratory tested a sample of the merchandise and determined the following: “Based on our analysis and information provided by the importer, the glass files are chemically toughened but not pressed.”
The nail files were entered on various dates between August 23, 2005, and August 1, 2006, under subheading 8214.20.30, HTSUS, which provides for: “Manicure or pedicure sets and instruments (including nail files) …: Manicure or pedicure sets and instruments (including nail files), and parts thereof: …nail files …”, in contravention of a binding CBP decision which classified this merchandise under heading 7013, HTSUS. See New York Ruling Letter (“NY”) L81589, dated January 7, 2005. On September 1, 2006, and September 22, 2006, CBP reclassified the merchandise under subheading 7013.99.55, HTSUS, which provides for: “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes…: Other glassware: Other: Other: Valued over $.030 but not over $3.00 each,” and liquidated all the entries at issue under this subheading. The instant protest and AFR were filed on February 23, 2007.
Protestant now alleges that the nail files are properly classified under subheading 7006.00.40, HTSUS, which provides for: “Glass of heading… 7005 [float glass], bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials: Other: Other.”
ISSUE:
What is the proper tariff classification of the glass nail files under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for all involved entries made after December 18, 2004 (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. 2506-07-100009 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed involves matters previously ruled upon by the Commissioner of Customs or designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Specifically, Protestant alleges that NY L81589, the ruling previously issued on this merchandise, “contains only a partial discussion of relevant facts and no legal analysis.”
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes[.]" In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order. The HTSUS provisions under consideration are as follows:
7006.00 Glass of heading 7003, 7004 or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials:
Other:
7006.00.40 Other …
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not over
$3.00 each….
When interpreting and implementing the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) should be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).
At the outset, we note that although the merchandise was entered under subheading 8214.20.30, HTSUS, that classification has not been raised in this AFR and will not be discussed.
Protestant argues that the glass nail files are classified as worked flat glass under heading 7006, specifically in subheading 7006.00.40, HTSUS. In support of this position, Protestant cites Headquarters Ruling Letter (“HQ”) 087015, dated October 3, 1990, and HQ 958837, dated June 18, 1996. We note, however, that these rulings concerned the classification of mirrored glass, which is not at issue in this ruling. Further, it appears that these rulings may be subject to modification or revocation because they no longer reflect CBP’s position on the classification of mirrored glass. See HQ 968221, dated July 31, 2006. For both these reasons, we find the cited rulings to be unhelpful in deciding the classification of the glass nail files at issue.
Heading 7006, HTSUS, provides for, in part, glass of heading 7005, HTSUS, that is, float glass in sheets. Float glass is not chemically hardened. Accordingly, in their imported condition, not taking into account that the files have been edge worked, acid treated, hand painted, and subjected to an obscuring process and that some are engraved, the files are outside the scope of heading 7005, HTSUS, because they have also been chemically hardened. That process is not allowable under the provisions of heading 7005 or 7006. Consequently, they are precluded from classification under heading 7006, HTSUS, by the terms of that heading.
CBP has previously found that glass nail files are classified under heading 7013, HTSUS, as “glassware of a kind used for…. toilet…or similar purposes (other than that of heading 7010 or 7018).” See NY L81589, dated January 7, 2005. The HTSUS does not contain a statutory definition for “toilet.” 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)). Finally, the Explanatory Notes, while not binding law, offer guidance as to how tariff terms are to be interpreted. See Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting Explanatory Notes are "intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation").
The Merriam-Webster Dictionary Online (http://www.m-w.com; last viewed August 4, 2008) defines “toilet” as “2. the act or process of dressing and grooming oneself.” The term “toiletry” is defined as “an article or preparation (as toothpaste, shaving cream, or cologne) used in cleaning or grooming oneself – usually used in plural.” Moreover, the ENs to heading 7013, HTSUS, provide, in part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
* * *
(2) Toilet Articles, such as soap-dishes, sponge-baskets, liquid soap distributors, hooks and rails (for towels, etc.), powder bowls, perfume bottles, parts of toilet sprays (other than heads) and tooth-brush holders.
* * *
These articles may be e.g., of ordinary glass … They may also be colourless, colored or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles).
(Emphasis in original)
The glass nail files in question are tools used to gently grind down and shape the edges of nails. Moreover, as discussed in the ENs, they are “etched or engraved, or otherwise decorated.” As such, we find them to be articles used for grooming purposes (i.e., making one’s toilet), classifiable in heading 7013, HTSUS, as glassware of a kind used for toilet purposes.
Protestant raises several arguments against classifying the nail files as toilet articles of glass under heading 7013, HTSUS. First, he argues that the nail files are not “glassware” of heading 7013, HTSUS, because they are not similar to the exemplars listed in the corresponding ENs. Specifically, Protestant contends that glassware refers only to items that hold things. We disagree. In Los Angeles Tile Jobbers, Inc. v. United States, 63 Cust. Ct. 248, C.D. 3904 (1969), the court determined that “[a]ll articles of glass are generally defined as ‘glassware.’” Moreover, the ENs list among the exemplars of glassware items that do not hold things, such as glass statuettes, animals, flowers, foliage and fruits.
Second, Protestant argues that “toilet articles” of heading 7013, HTSUS, refers only to “container[s] or holder[s] for something that may be used in connection with grooming, washing oneself, etc.” A glass nail file, he argues, is not a “toilet article” because it does not “share… [t]he ‘container’ features that are common to each of the exemplars” (e.g., soap-dishes, liquid soap distributors, and toothbrush holders). As defined above, toilet articles are items used for grooming purposes generally; it is not required that they have “container features.” Further, we note that the examples listed in the ENs to heading 7013, HTSUS, are only some of the items that may be covered in a particular category and are not intended to be an all-inclusive listing. For the same reason, we reject Protestant’s contention that the nail files are not toilet articles because they are not “obtained by pressing or blowing in moulds,” as are most of the exemplars in the ENs to heading 7013, HTSUS.
Finally, Protestant submits that the glass nail files should not be classified as a toilet or household item because they are not used exclusively at home, but are primarily used in nail and beauty salons. We disagree, and note that the actual location in which the product is used is irrelevant; the heading only requires that the item be glassware used for personal grooming.
Based on the foregoing, we find that the subject articles are toilet articles of glass of heading 7013, HTSUS. Our conclusion is consistent past CBP rulings. See HQ W966876, dated September 19, 2005 and NY F84367, dated April 7, 2000. NY L81589, dated January 7, 2005, concerning the classification of this merchandise and previously issued to Protestant is correct.
With regard to Protestant’s suggested alternate classification under heading 7020, HTSUS, we note that because the nail files are correctly classified under heading 7013, they are outside the scope of heading 7020, HTSUS. See EN 70.20, “This heading covers glass articles ... not covered … by other headings of this chapter or of other chapters of the Nomenclature.”
HOLDING:
By application of GRI 1, the glass nail files are classified under heading 7013, specifically in subheading 7013.99.40, HTSUS, which provides for: "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes . . .: Other glassware: Other: Other: Other: Valued over $0.30 but not over $3 each." The 2006 column one, general rate of duty is 30 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
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 CBP Form 19, to 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 the decision the Office of International Trade will make the decision 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