CLA-2- OT:RR:CTF:TCM H106782 MG
Port Director, San Diego Service Port
U.S. Customs and Border Protection
9777 Via De La Amistad
San Diego, CA 92154
Attn: Judith Vance
RE: Application for Further Review of Protest No: 2506-10-100016;
Classification of Plastic Glue Cap with Steel Pin
Dear Port Director:
This is our decision regarding the Application for Further Review (AFR) of Protest No. 2506-10-100016, timely filed by InOut Trading Corporation (Protestant/InOut). The protest concerns the classification of plastic glue caps with attached steel pins under the Harmonized Tariff Schedule of the United States (HTSUS).
In reaching our decision, we have taken into consideration arguments made by counsel in the memorandum in support of protest and application for further review as well as a teleconference held with counsel, on September 21, 2010. Product pictures and specifications were submitted for our review.
FACTS:
The subject merchandise is described as “IKL” stainless steel hollow push pins or plastic glue caps (caps) imported from China. After importation, the caps are sent to Mexico, where they are packaged together with the tubes of glue. It is clear from the construction of the cap, which fits tightly around the mouth of the glue container, that it was designed to function as a cap to seal the glue container and keep the glue from drying out. The cap has a pin extension, which is used to pierce the top of the glue container.
This Protest concerns eight entries. Protestant entered the merchandise on various dates, between October 10, 2008, and August 18, 2009, under subheading 7319.30.5010, HTSUS, which provides for “Sewing needles, knitting needles, bodkins, crochet hooks, embroidery stilettos and similar articles for use in the hand, of iron or steel; safety pins and other pins of iron or steel, not elsewhere specified or included: Other pins: other: push pins.”
On November 27, 2009, CBP liquidated the entries under subheading 3923.50.0000, HTSUS, which provides for “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Stoppers, lids, caps and other closures.” Protestant filed the instant Protest on March 24, 2010.
ISSUE:
Whether the Plastic Glue Cap with Steel Pin is classified under heading 3923, HTSUS, as a cap or under heading 7319, HTSUS, as a pin.
LAW AND ANALYSIS:
Initially, we note that the subject matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification, and the protest was timely filed, within 180 days of liquidation. See, 19 U.S.C. § 1514(c)(3).
Further review of Protest No. 2506-10-100016 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) 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 the Commissioner of CBP or his designee or by the Customs courts.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule 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 1 through 6 may then be applied in order.
The 2008 HTSUS headings under consideration are the following:
3923
Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:
3923.50.00
Stoppers, lids, caps and other closures.
7319
Sewing needles, knitting needles, bodkins, crochet hooks, embroidery stilettos and similar articles for use in the hand, of iron or steel; safety pins and other pins of iron or steel, not elsewhere specified or included:
7319.30.50
Other
7319.30.50.10
Push pins
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 3923 indicate, in pertinent part, that this heading covers:
Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics ... This heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products. The articles covered include: … (c) Stoppers, lids, caps, and other closures. …
At the outset, we note that "Articles for the conveyance or packing of goods, of plastics" is separated by a semicolon from "stoppers, lids, caps and other closures, of plastics." Items separated by a semicolon in the headings of the HTSUS need to be considered separately for the purposes of classification, as the semicolon signals the end of an article description and the beginning of another article description. See Headquarters Ruling (HQ) 956924, dated August 25, 1994 and HQ 087835, dated January 8, 1991. In this regard, heading 3923, HTSUS, is not limited to caps for the conveyance or packing of goods of plastics, exclusively. See HQ 966963, dated April 30, 2004, where CBP classified plastic screw caps not used for the packing and conveyance of products in subheading 3923.50.00, HTSUS.
When a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” See, Mita Co star Am. V. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. See, Simod Am. Corp. v. United States, 872 F. 2d 1572, 1576 (Fed. Cir. 1989). 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.” See, C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F. 2d at 1576.
The Merriam-Webster Online Dictionary, located at www.merriam-webster.com, defines a "cap" as "something that serves as a cover or protection" or "a fitting for closing the end of a tube." Oxford Dictionaries Online, located at www.oxforddictionaries.com, similarly defines "cap," in relevant part, as “a protective lid or cover for an object such as a bottle, the point of a pen, or a camera lens.” It is CBP’s view that the subject article clearly fits within these definitions.
The Protestant requests classification in subheading 7319.30.5010, HTSUS, as “Sewing needles, knitting needles, bodkins, crochet hooks, embroidery stilettos and similar articles for use in the hand, of iron or steel; safety pins and other pins of iron or steel, not elsewhere specified or included: Other pins: other: push pins.
A “pin” is defined in Merriam-Webster Online Dictionary as “a piece of solid material (as wood or metal) used especially for fastening things together or as a support by which one thing may be suspended from another.” A “push pin” is defined in the Merriam-Webster Online Dictionary as “a pin that has a roughly cylindrical head and that is easily inserted and withdrawn (as from a bulletin board).” Oxford Dictionaries Online, similarly defines “push pin” as “a thumbtack with a spherical or cylindrical head of colored plastic, used to fasten papers to a bulletin board or to indicate positions on charts and maps.”
A push pin is defined in the dictionary by its physical characteristics and use. It is described as having a steel point that projects from a spherical or cylindrical head, and is referred to as a thumbtack with these features. In HQ 961974, dated June 15, 1999, the Webster’s II New Riverside University Dictionary (1984) defines a thumb tack as “a short light nail with a sharp point and a flat head.” The above referenced definitions describe a push pin as being used to fasten papers or locate positions on a wall or board.
The ENs to heading 7319, provide examples of pins classifiable in that heading. We note that the examples provided are used for sewing or securing and not for puncturing. Therefore, the instant steel hollow pin is not a pin or push pin provided for in heading 7319, HTSUS, or subheading 7319.30.50, HTSUS.
While it is claimed that the item is a hollow steel pin used to puncture the top of a plastic glue tube, the product’s instructions indicate that this pin is not needed to puncture a hole. For instance, one of the submitted illustrations suggests that scissors may be used as an alternative to the pin element of the cap for creating an opening for the flow of glue. Protestant further states that, although the product is usable as a cap for the glue product, the majority of customers discard this cap after puncturing the seal. Protestant has failed to present any evidence to substantiate this assertion and the illustrations on the packaging material contradict this statement.
One of the illustrations of the glue package demonstrates that the cap with pin is an optional method of closing the opening created for the flow of glue. Once the container is opened for the first time, it requires a secure seal to protect the viability of the glue. It is clear from the construction of the cap, which fits tightly around the mouth of the glue container, that it was designed to function as a secure top seal. This cap is referred to on the package as a "tapon," which translates from Spanish as stopper, cap or plug. The glue is marketed as being powerful enough that a single drop is sufficient for most jobs, and there is sufficient glue in the tube for use with a multitude of tasks, over a period of time, therefore, necessitating a cap that can be repeatedly opened, sealed and reopened.
The function of the imported product as a cap is further supported by the printed information on the product’s packaging and marketing literature from the website for the glue. The cap is highlighted on the website and identified as “Nuevo Tapon Abre Facil,” which translates from Spanish as “New Easy Open Cap,” or, alternatively, “New Cap Opens Easily.”
It is a well established classification principle that eo nomine provisions usually include all forms of the named article unless specifically excluded. See, Pomeroy Collection, Ltd. v. United States, 559 F. Supp. 2d 1374 (Ct. Int'l Trade 2008).; and Nootka Packing Co. v. United States, 22 C.C.P.A. 464, T.D. 47464 (1935). Many caps incorporate piercing elements. In some cases a plastic cap is molded to incorporate a sharp element at its top. The consumer turns the cap upside down to use the piercing element and then reverses the cap again to seal up the product.
The instant cap is of two-piece construction and the piercing element is made of a different component material than the rest of the cap. However, it functions in the same way as these single component multi-use caps. Although the product serves the function of piercing the top of the glue container, this function is ancillary to its primary function as a cap or seal.
The Protestant suggests, alternatively, that the instant cap be classified in heading 7326, HTSUS, as other articles of iron or steel, other. Classification in heading 7326, HTSUS, requires that the product have an essential character of iron or steel and not be more specifically provided for elsewhere. Because the product at issue functions primarily as a cap and can be classified in heading 3923, HTSUS, classification in heading 7326, HTSUS, is precluded.
HOLDING:
By application of GRI 1, the glue cap is classifiable under heading 3923, HTSUS, specifically under subheading 3923.50.0000, HTSUS, which provides for: “Articles for the conveyance or packing of goods, of plastics: Stoppers, lids, caps and other closures." The column one general rate of duty is 5.3% ad valorem. You are instructed to DENY the protest.
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 the Protestant no later than 60 days from the date of this letter. No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website located 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