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HQ 963026




March 31, 2000

CLA-2 RR:CR:GC 963026 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 7007.29.00

Port Director of Customs
John F. Kennedy Airport
Building # 77
Jamaica, NY 11430

RE: Protest 1001-98-105376; “safety sight glasses”

Dear Port Director:

The following is our decision regarding protest 1001-98-105376, dated December 11, 1998, concerning your classification of “safety sight glasses” – articles of worked, tempered glass used in pulp and paper manufacturing machines – pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Technical literature and photocopies of the finished articles were provided for our consideration.

FACTS:

The products, referred to by the protestant as “safety sight glasses,” brand name and model #s: “Disc Bak 50 Yarway YXL (8.50.409),” “Maxos HPM-7 Commercial (8.53.189),” “Maxos HP-MIL Fasegeschl (8.53.190),” and “Maxos HP-MIL (8.53.192)” are pieces of worked, tempered glass used in a variety of industrial machines. In its November 19, 1997, response to Customs Request for Information (19 CFR 151.11, 152.2), the protestant stated that:

The article is high temperature borosilicate glass, safety sight glass used in the paper and pulp manufacturing process where the operator is able to see the flow of the liquids used in the production process[.] The article is part of a liquid level gauge.

It appears from the photocopies that the articles are either circular or oval in shape and are produced in various sizes and thickness. The accompanying literature describes the articles as having been manufactured and treated to withstand substantial changes in temperature (± 265º C) and pressure, as well as exposure to various types of corrosive liquid chemicals. It is claimed that all models are designed to be used to check the flow of liquids. The Customs Laboratory in Chicago, in response to a request of Customs in Cleveland, analyzed a product similar to those at issue (same manufacturer, similar product), serial # DEAUESOG10GAN, and issued a report, #3-2000-10030-001, dated January 20, 2000, which confirmed that the product was tempered but not laminated. Although this protest concerns articles of different serial numbers, we find the laboratory report compelling insofar as it confirms the statements made in the protestant’s literature that the articles are specially tempered to withstand temperature, chemical, and pressure changes, stresses and “attacks.”

The products were entered between July 1997 and January 1998, and the entries were liquidated on September 11 and October 2, 16 and 23, 1998. The protest was filed on December 11, 1998. The products were classified at liquidation under subheading 7006.00.10 and 7006.00.40, HTSUS.

ISSUE:

Whether the “safety sight glasses” used in a pulp and paper manufacturing machine are classifiable under subheading 9026.90.60, HTSUS, as other parts and accessories for measuring or checking the flow of level of liquids, flow meters . . . other?

LAW and ANALYSIS:

Initially we note that the protest (Customs Form 19), is date stamped December 14, 1998. However, in the DATE RECEIVED block, a handwritten notation appears that indicates that the protest was “faxed by 12/11/98.” Even using the December 11, 1998, date as the date of filing of the protest, as to the September 11, 1998, entries (#s 532 . . . 1749 and 532 . . . 2994), the protest was untimely filed (i.e., a protest must be filed within 90 days after but not before the notice of liquidation (19 U.S.C. §1514(c)(3)(A); 19 C.F.R. §174.12(e)); the notice of liquidation was dated September 11, 1998, and the protest was filed December 11, 1998, 91 days after the notice of liquidation). For an example of the judicial treatment of a protest filed after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991). The protest must be denied as to the September 11, 1998, entries. As to the remaining entries, the protest was timely filed (see above) and the matter protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).

Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRIs). GRI 1, HTSUS, states in part that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes[.]”

The HTSUS headings and subheadings 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:
7006.00.10 Strips not over 15.2 cm in width, measuring over 2 mm in thickness, and having all longitudinal edges ground or otherwise smoothed or processed.
Other:
7006.00.40 Other.

7007 Safety glass, consisting of toughened (tempered) or laminated glass:
Toughened (tempered) safety glass:

7007.29.00 Other.

9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof:
9026.10.00 For measuring or checking the flow or level of liquids:

9026.90 Parts and accessories:
Other:
9026.90.40 Of flow meters, heat meters incorporating liquid supply meters and anemometers.
9026.90.60 Other.
The protestant claims that the articles are classifiable under subheading 9026.90.60, HTSUS, as other parts and accessories of instruments for measuring or checking the flow, level . . . of liquids, flow meters . . . other. In classifying the articles, Note 1 to Chapter 90 applies, and provides, in pertinent part, that:

1. This chapter does not cover:
(e) Goods of heading 7007, 7008, 7011, 7014, 7015 or 7017[.]

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 7006, HTSUS, provides, in pertinent part, for glass . . . (of the previous three headings) bent, edgeworked . . . drilled . . . or otherwise worked . . .. EN 70.06, provides, in pertinent part, that:

This heading covers glass of the types referred to in headings 70.03 to 70.05 which has been subjected to one or more of the processes mentioned below. The heading does not, however, include safety glass (heading 70.07) [.] (Emphasis in original)

Heading 7007, HTSUS, provides, in pertinent part, for safety glass consisting of toughened (tempered) or laminated glass.

EN 70.07, provides, in pertinent part, that:

The term  “safety glass” covers only the types of glass described below and does not refer to protective glass such as ordinary wired glass and selective absorption glasses (e.g., anti-glare glass, X-ray protective glass).

(A) Toughened (tempered) glass.

This is:

(1) Glass obtained by reheating pieces of glass until they are soft but not soft enough to lose their shape. The glass is then cooled rapidly by appropriate processes (thermal-toughened glass).

(2) Glass whose strength, durability and flexibility have been substantially increased by a complex physical-chemical treatment (e.g., ion exchange) which may include a modification of the surface structure (commonly known as  “chemically toughened glass”).

This glass cannot be worked after manufacture because of the internal stresses set up by the processing and is therefore always produced in the shapes and sizes required before tempering.

Given the fact that the Customs Laboratory has confirmed that a similar sample to those at issue (produced by the same manufacturer) is in fact tempered, the articles cannot be classified in heading 7006, HTSUS. As EN 7007 indicates that the heading is intended to include tempered glass in the finished form necessary to be incorporated into other apparatus, sight glasses are classifiable in heading 7007, HTSUS. As a result, Legal Note 1(e) to Chapter 90 excludes the articles from classification in Chapter 90, HTSUS.

The articles are tempered glass used to observe fluid levels. As such, the articles are specifically provided for in heading 7007, HTSUS.

HOLDING:

As a result of the untimeliness of protest as to the September 11, 1998, entries (#s 532 . . . 1749 and 532 . . . 2994) the articles included in those entries remain classifiable as they were upon liquidation, i.e., under subheadings 7006.00.10 and 7006.00.40, HTSUS. As to the remaining entries that were timely protested, the “safety sight glasses” are classifiable in subheading 7007.29.00, HTSUS, which provides for other as safety glass, toughened (tempered) or laminated.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with Customs Form 19, should be mailed by your office to the protestant no later than sixty (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 this decision. Sixty (60) days from the date of this decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, the World Wide Web at www.customs.treas.gov, and other public access channels.

Sincerely,

John Durant, Director

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