CLA-2 OT:RR:CTF:TCM H021885ARM
Ms. Jennifer Hengles
Kavo America Corporation
340 East Main Street
Lake Zurich, Il 60047
RE: Modification of NY J89431 and NY K81158; T and G Blanks
Dear Ms. Hengles:
In New York (NY) Ruling Letters J89431, dated October 7, 2003, and NY K81158, dated November 20, 2003, Customs and Border Protection (“CBP”) classified, under the Harmonized Tariff Schedule of the United States (HTSUS), T and G blanks for the “Everest” system imported separately, as “artificial teeth” under heading 9021, HTSUS. For the reasons set forth below, CBP intends to modify these rulings.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the CUSTOMS BULLETIN, Volume 43, Number 22, on May 29, 2009, proposing to modify New York (NY) Ruling Letter J89431, dated October 7, 2003, and NY K81158, dated November 20, 2003, and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
The merchandise consists of titanium cylinders and glass ceramic cylinders of varying sizes. Pictures on the internet reveal that titanium cylinders are marked engraved with the letter “T” and numbers relating to the size. The box containing the cylinders is labeled Everest® T-Blank. Boxes of larger titanium blocks and flat round material are also labeled “blanks.” The cylinders at issue here are created in the following sizes of diameter in millimeters: 10 x 12, 12 x 16, 16 x 13, and 16 x 16. The glass ceramic cylinders appear similar in size and shape and are marked with a “G”. Leucite glass ceramic is made through a process of devitrification of leucite into glass.
In NY J89431 and K81158, CBP describes the merchandise thus:
Per the Everest Elements brochure, the blanks are: "The Everest T-Blanks provide the laboratory with industrially produced titanium blanks in various sizes for the KaVo Everest system. Medical pure titanium (grade 2) is a tried-and-tested biocompatible material suitable for the production of crown and bridge frameworks. In addition to the biocompatibility of titanium, the following properties are noteworthy: Low thermal conductivity Comfortable prosthesis due to low weight Neutral taste X-ray translucency
To meet aesthetic demands, articles produced from Everest T-Blanks can be easily faced with titanium ceramic (titanium ceramic from VITA) or composite. This leucite-reinforced glass ceramic together with the Everest system enables the laboratory very easily to produce inlays, onlays, veneers and anterior and posterior crowns from ceramic. The Everest G-Blanks are clinically proven and in particular have the following properties: Natural translucency Biocompatibility High breaking strength Good polishability" From the illustrations both are cylinders in various sizes to approximate the size of the finished piece. The ceramic blanks also come in various colors to better match the patient’s other teeth.
The T and G blanks are part of the Everest system for creating crowns, bridges and artificial teeth. The system utilizes CAD/CAM technology to create the finished product. First a model is made of the patient’s tooth. Then the blank is embedded into a positioning appliance. The model is scanned and the computer technology allows the titanium or glass ceramic cylinder to be milled to shape. In some cases, the milled piece is then sintered, a process of applying heat to create the final shape and hardness of the artifice. Lastly, coatings or stains may be added to mimic the appearance of an actual tooth.
ISSUE:
Are Everest T and G “blanks” classified as “artificial teeth” in heading 9021, under GRI 2(a), or according to their material composition in Chapters 70 and 81?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the 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, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 thorugh 6 may be applied. GRI 2(a) states “Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.”
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS at the international level. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to GRI 2(a) states, in pertinent part, the following:
RULE 2 (a)
(Incomplete or unfinished articles)
(I) The first part of Rule 2 (a) extends the scope of any heading which refers to a particular article to cover not only the complete article but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article.
(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”.
The HTSUS provisions under consideration are as follows:
7020 Other articles of glass:
7020.00.60 Other
* * * * *
8108 Titanium and articles thereof, including waste and scrap:
8108.90 Other:
8108.90.30 Articles of titanium
* * * * *
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:
9021.21.40 Of plastics
9021.21.80 Other
The general ENs to Chapter 70 state, in pertinent part, the following:
This Chapter also covers :
* * * * *
(2) Special materials known as glass-ceramics, in which the glass is converted into an almost wholly crystalline material by a process of controlled crystallisation. They are made by adding to the glass batch nucleating agents which are often metal oxides (such as titanium dioxide and zirconium oxide) or metals (such as copper powder). After the article has been shaped by ordinary glass-making techniques, it is maintained at a temperature such as to ensure crystallisation of the glassy body around the nucleating crystals (devitrification). Glass-ceramics may be opaque or sometimes transparent. They have much better mechanical, electrical and heat-resistant properties than ordinary glass.
EN 70.20 states, in pertinent part, the following:
This heading covers glass articles (including glass parts of articles) not covered by other headings of this Chapter or of other Chapters of the Nomenclature.
These articles remain here even if combined with materials other than glass, provided they retain the essential character of glass articles. The heading includes :
(1) Industrial articles such as pots, bowls, cylinders or discs for glazing hides or skins; protectors for safety or other apparatus; greasing cups; thread guides; sight-holes and gauge-glasses; S-shaped tubes; coils; guttering and drains for corrosive products (often of fused quartz or other fused silica); absorption drums for hydrochloric acid and trickling columns.
* * * * *
EN 81.08 states, in pertinent part, the following: “This heading covers titanium in all forms: in particular, sponge, ingots, powder, anodes, bars and rods, sheets and plates, waste and scrap, and products other than those articles covered by other Chapters of the Nomenclature (generally Section XVI or XVII), such as helicopter rotors, propeller blades, pumps or valves.”
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, usually made of porcelain or plastics (acrylic polymers in particular). These may be “diatoric” teeth having a small number of holes into which the fixing material penetrates (generally molars), or may be fitted with two metallic pins for fixing (generally incisors and canines) or with a groove for sliding on to a metal ridge fixed to the dental plate (also usually incisors and canines).
(2) Hollow artificial teeth, also made of porcelain or plastics and with the external shape of teeth (incisors, canines or molars).
According to the method of fixing, they are called “pivot teeth” (placed on a small metallic pin or pivot fitted into the prepared root), or “crowns” (fitted by means of artificial resin on to a previously shaped stump).
(3) Dentures, whole or part, comprising a plate of vulcanised rubber, plastics or metal to which the false teeth are fitted.
(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.).
It should be noted that dental cements and other dental fillings fall in heading 30.06; the preparations known as “dental wax” or as “dental impression compounds”, put up in sets, in packings for retail sale or in plates, horseshoe shapes, sticks or similar forms, and other preparations for use in dentistry, with a basis of plaster (of calcined gypsum or calcium sulphate), fall in heading 34.07.
At GRI 1, the titanium cylinders are described by heading 8108, as “articles of titanium.” The cylinders are made of titanium and are fashioned into a discrete article. The glass-ceramic cylinders are formed by the divitrification of leucite into glass, but retain their character as articles of glass of heading 7020 explicitly included in the Chapter in the General ENs to Chapter 70 (see also, Headquarters Rulings (HQs) 086734, dated May 2, 1990, 960274, dated October 9, 1997, 085563, dated January 18,. 1990, and NY F82435, dated February 23, 2000.)
The question is whether these articles of their respective material can be described as unfinished artificial teeth of heading 9021, using GRI 2(a). If so, the T and G blanks cannot be classified in headings 8108 and 7020 respectively.
Under GRI 2(a), an unfinished article is classified in the heading for the finished article if it has the essential character of the complete or finished article. The EN to GRI 2(a) explains that a covered unfinished article may be a “blank”, which it defines as “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 . . .” As commentary on the scope of the heading, the EN can neither expand nor decrease that scope of the heading. Therefore, the description of a “blank” in the EN cannot be taken to mean that an article named a blank in the trade, but which does not contain the essential character of the finished article, can be classified in the provision for the finished article. Hence, the immediate question is whether the T and G blanks contain the essential character of the dental artifice which they become.
The applicable text of heading 9021 is “artificial parts of the body.” The cylindrical articles do not resemble any part of the body, nor do they appear to contain the essential character of any part of the body. Even when revealed that the cylinders become artificial teeth or other dental artifice, they are not immediately recognizable as such. They are not the approximate shape or outline of an artificial tooth, crown or bridge. Although small, they are considerably larger than teeth. Unlike teeth, they are perfectly cylindrical in shape with a flat bottom and top. They are not ready for direct use as an artificial tooth, crown, bridge or other dental artifice.
In addition, the EN to GRI 2(a) lists “bottle preforms of plastics” as an example of blanks describing them thus: “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.” The bottle preforms of the EN have the tubular shape of a bottle, with one closed and one open end. The threads are already formed. Once expanded, the bottle is formed. Unlike the process in creating artificial teeth from the instant blanks, there is no addition or deletion of material. There is no sintering or other process to harden or otherwise change the tensile strength or other physical properties of the plastic other than the fact of the plastic becoming slightly thinner by means of the expansion. This physical change is part and parcel of creating the shape of the bottle from the blank, whereas the processes employed with the subject blanks are in addition to those milling procedures that create the shape of the dental artifice. Lastly, the EN excludes profile shapes such as bars and rods from classification as unfinished articles under GRI 2(a). The cylindrical blanks here are similar to the bars and rods of the example.
Other examples of “blanks” are found in numerous CBP rulings. For instance, in HQ H003713, dated February 22, 2007, screw blanks, which had the approximate shape or outline of a finished screw, albeit without threads or finished heads, were classified as unfinished screws in heading 7318, HTSUS. Likewise, in H006327, dated August 28, 2007, stainless steel forgings already sized and shaped for use as elbow, cross or tee pipe fittings, were classified as unfinished tube or pipe fittings of heading 7307, HTSUS. In HQ 953079, dated July 8, 1993, panel blanks for automobiles, said to have the “approximate shape or outline of the finished article; motor vehicle side panels,” were classified as a part of bodies of motor vehicles. The side panels were used directly on the motor vehicle. Their shape or size was not further altered.
In HQ 951620, dated August 4, 1992, circular steel blanks were classified according to their material component rather than as unfinished automotive wheels. They consisted of non alloy SAE 1015 steel cut by an automated process, die sunk with an identifying part number designating a specific wheel for a particular automobile. After importation, the wheel blanks are drawn, strengthened, formed with pockets, bolt hole mounting pads and other specific features, trimmed and turned under to create a rim, and the center hole is punched. In that ruling we state the following:
The precise external specifications of the wheel blanks is an indication that they will be used principally, if not solely, for completion into automotive wheel discs. . . . It is only after each wheel blank is drawn and reversed, and the pockets, bolt hole mounting pads, vents or window imparted by one or more forming processes, and the center hole punched, that the shape or outline of the finished wheel disc can be seen (pp.3-4).
In that case, CBP found that the wheel blanks were essentially semi-manufactures which are not “blanks” for tariff purposes under GRI 2(a).
In HQ 956210, dated August 11, 1994, steel circle blanks for the front cover of an automobile torque converter or transmission were similarly found to “have neither the form nor shape nor visually apparent characteristic of the specific part or component they will be when finished.”
These examples of previous rulings show that we have been consistent in requiring that a blank, for tariff purposes, has the approximate shape or outline of the finished article. The cylinders at issue are more akin to the semi-manufactures of HQ 951620 and HQ 956210. Like in those cases, the material of the instant cylindrical articles is particularly suited to use in artificial teeth, crown and dental artifices, and the size is convenient for that use. However, the instant cylindrical articles do not have the approximate shape, outline, hardness or tensile strength of a finished tooth and cannot therefore be considered blanks for tariff purposes under heading 9021, by application of GRI 2(a).
The Everest T and G blanks are classified in headings 8108 and 7020, HTSUS, respectively. Specifically, the Everest T-blanks are classified in subheading 8108.90.30, the provision for “Titanium and articles thereof, including waste and scrap: Other: Articles of titanium” and the Everest G blanks are classified in subheading 7020.60.00, HTSUS, the provision for “Other articles of glass: Other.”
HOLDING:
By application of GRI 1, The Everest T blanks are classified in heading 8108 HTSUS, specifically in subheading 8108.90.30, the provision for “Titanium and articles thereof, including waste and scrap: Other: Articles of titanium”. The 2009 column one general rate of duty is 5.5% ad valorem. The Everest G blanks are classified in heading 7020, specifically subheading 7020.60.00, HTSUS, the provision for “Other articles of glass: Other.” The 2009 column one general rate of duty is 5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.
EFFECT ON OTHER RULINGS:
New York (NY) Ruling Letters J89431, dated October 7, 2003, and NY K81158, dated November 20, 2003, are modified in accordance with the above holding.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Classification and Trade Facilitation Division