CLA-2 OT:RR:CTF:TCM W967938 IDL
Port Director
U.S. Customs and Border Protection
330 2nd Avenue South, Suite 560
Minneapolis, Minnesota 55401
Re: Application for Further Review of Protest No. 3501-05-100017; Survival Signal Mirror
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3501-05-100017, timely filed by the importer, Vector 1, Inc., against your classification of the “Survival Signal Mirror”, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The Survival Signal Mirrors (“SSM”), originally developed for the U.S. Air Force in World War II as an emergency signaling device for downed pilots and stranded troops, can be used to reflect sunlight to signal any distant rescuers of a rescuee’s location. The SSM contain a sight-grid in their center that allows an operator to monitor the location of a reflection and to manipulate the SSM for more efficient targeting. A bright spot, visible only to the operator of the SSM, pinpoints the location of a reflection on a target. The appearance of the bright spot is made possible by the incorporation of a mesh material within the SSM.
The SSM are imported from Japan. They contain two layers of glass, with the mesh material between the layers. The edges of the glass are ground and polished for safe handling. The mesh material, visible through the sight-grid in the center, is hemispherically coated with an aluminum reflective surface that causes incoming light rays to “retro-reflect” back at the exact incoming angle, rather than reflecting at a natural angle (i.e., equal to but opposite the direction of the incoming light). The SSM are made of ¼ inch laminated glass, and are approximately 2” x 3” x 6.4mm and 3” x 5” x 6.4mm. Operating instructions are printed on the back of the SSM.
On February 12 and July 8, 2004, and January 13, 2005, Vector 1, Inc. (“protestant”) made separate entries of the subject merchandise as a “visual signaling apparatus” in subheading 8531.10.00, HTSUS. On March 4, 2005, the port liquidated the entries, classifying the SSM as “glass mirrors” in subheading 7009.91.10, HTSUS. The protestant concedes that its classification of the SSM in subheading 8531.10.00, HTSUS, was incorrect, but protests the port’s classification of the merchandise in subheading 7009.91.10, HTSUS. The protestant contends that the SSM should be classified either in subheading 7014.00.50, HTSUS, as “signaling glassware”, or in subheading 9014.80.10, HTSUS, as “navigational instruments”.
ISSUE:
Whether the Survival Signal Mirror is classified as a “glass mirror” in heading 7009, HTSUS, as “signaling glassware” in heading 7014, HTSUS, or as a “navigational instrument” in heading 9014, 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 the classification and rate and amount of duties chargeable. The protest was timely filed, within ninety days of liquidation of two of the entries made before December 18, 2004, and within 180 days of liquidation of one entry made on or 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) (2007)).
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 2 through 6 may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2004 and 2005 HTSUS provisions under consideration are as follows:
7009 Glass mirrors, whether or not framed, including rear-view mirrors:
* * *
Other:
Unframed:
7009.91.10 Not over 929 cm2 in reflecting area
…
7014 Signaling glassware and optical elements of glass (other than those
of heading 7015), not optically worked:
* * *
Other:
* * *
7014.00.50 Other
…
9014 Direction finding compasses; other navigational instruments and appliances; parts and accessories thereof:
* * *
Other instruments and appliances:
Optical instruments
* * *
…
The protestant claims that the SSM should be classified as “navigational instruments” in heading 9014, HTSUS. As the term “navigational instruments” is not defined in the HTSUS or ENs, we cite to the “common or dictionary meaning in the absence of evidence to the contrary”. See, United States v. Corning Glass Works, 66 CCPA 25, 586 F. 2d 822, C.A.D. 1216 (1978). A “navigational instrument” is defined as a device used to determine “position, course, and distance traveled” in sailing, flying, and space travel. See, Merriam-Webster’s Collegiate Dictionary, Tenth Ed., 2001, defining “navigation”. EN 90.14 lists “instruments for the determination of a ship’s position”, “other special marine or river navigational instruments”, and “special instruments for air navigation” as the types of goods that are covered under heading 9014. The SSM is a device used to reflect sunlight to signal any distant rescuers. Clearly, the SSM does not fall within the scope of the definition or the EN provisions cited, and cannot be used as a navigational instrument. Accordingly, the SSM is not a “navigational instrument” of heading 9014, HTSUS.
Heading 7009, HTSUS, does not cover “[m]irrors which have been converted into other articles by the addition of some extra part….” See EN 70.09. The SSM contains the technological mesh material, discussed above, that converts the SSM into an article for a specific purpose other than as a mirror within the scope of heading 7009, HTSUS. Accordingly, the SSM cannot be classified in heading 7009, HTSUS.
Heading 7014, HTSUS, covers “signaling glassware”, provided they have not been optically worked. EN 70.14 describes signaling glassware as:
Signalling [sic] glassware (colourless or coloured) intended for incorporation in reflecting road signs…or in display signs, or as simple reflectors for cycles, automobiles, etc. These articles, which are usually convex, hemispherical or flat with grooves normally running parallel, have the property of reflecting light projected on them (by automobile headlamps, for example) and are thus visible from a distance in the dark.
…
Optical working consists of grinding the surfaces first with coarse and then with gradually finer abrasives. The successive operations are thus roughing, trueing, smoothing and polishing.
Articles which have undergone one or more of the processes preceding polishing remain in this heading. But elements which have the whole or part of one or more of their surfaces polished to produce the required optical properties are excluded (heading 90.01 or 90.02 according to whether they are unmounted or mounted…). [Emphasis added]
Consistent with the description of “signaling glassware” in EN 70.14, the
SSM contain a mesh material hemispherically coated with an aluminum surface that reflects light that is visible from a distance. Accordingly, the SSM is classified in heading 7014, HTSUS. We emphasize that only the edges of the SSM, as discussed above, are ground and polished (“optically worked”). As such, the “optical working” of the edges of the SSM merely serves a “safety” purpose, rather than any functional or optical purpose that would exclude them from heading 7014, HTSUS, as provided in EN 70.14.
HOLDING:
By application of GRI 1, the SSM is classified in heading 7014, HTSUS, and provided for under subheading 7014.00.50, HTSUS, as: “Signaling glassware…, not optically worked: Other: Other”. The column one, general rate of duty is 3.3% ad valorem. The protest should be GRANTED.
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.usits.gov/tata/hts/.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the counsel for 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 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