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HQ H005116




November 20, 2007

CLA-2 OT:RR:CTF:TCM H005116 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7020.00.6000

Port Director
U.S. Customs and Border Protection
7501 Esters Blvd.,Suite 160
Irving, TX 75063

RE: Application for Further Review of Protest 5501-05-100215

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 5501-05-100215, filed by Pisani and Roll, on behalf of Tyco Fire Products.

The protest is against Customs and Border Protection’s (CBP) classification of two entries of “Thermo-Bulbs” in heading 7020 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other articles of glass.”

Protestant entered the merchandise subject to this protest on July 8, 2004 free of duty in heading 8424, HTSUS, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof.” The merchandise was liquidated under Heading 7020, HTSUS, on May 13, 2005.

Protestant filed a protest with an application for further review on August 8, 2005, challenging the classification of the merchandise in heading 7020, HTSUS. Protestant’s AFR request was approved on September 16, 2005. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

In support of protestant’s application for further review, protestant alleges that the protest involves matters previously ruled upon by Customs and Border Protection (CBP) or by the courts but facts are alleged or legal arguments are presented which were not considered at the time of the original ruling. Specifically protestant argues that New York Ruling Letter (NY) J81652, dated March 12, 2003, which involved the classification of small glass bulbs designed to be mounted into a sprinkler system, did not contain detailed legal arguments in support of heading 8424, HTSUS. See 19 C.F.R. 174.24(c). Further review is warranted pursuant to 19 CFR §§174.24(c) and 174.25.

FACTS:

The “Thermo-Bulbs” are thermally triggered glass bulbs for automatic sprinklers, smoke vents, fire dampers and other release devices. The glass bulb contains a sealed chamber which houses a heat responsive expansible liquid to rupture the glass bulb when heat is sensed. The liquid may consist of lower alkyl homologs of benzene, aliphatic hydrocarbons of medium chain length, lower cycloaliphatic hydrocarbons, halogenated hydrocarbons, esters of ketocarboxylic acids, and simple lower ketones and mixtures of these with one another or with other liquids miscible with these so as to achieve predetermined response times.

ISSUE:

Whether the Thermo-Bulbs are classified in heading 7020, HTSUS, as other articles of glass, or in heading 8424, HTSUS, as parts of mechanical appliances for projecting, dispersing or spraying liquids or powders.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Protestant argues that the Thermo-Bulbs should not be classified as articles of glass because they contain significant amounts of a specially designed liquid in addition to glass. Moreover, protestant avers that the function of the liquid is just as important as the glass.

Note 1(c) to Chapter 84, HTSUS, states:

1. This Chapter does not cover :

(c) Laboratory glassware (heading 7017); machinery, appliances or other articles for technical uses or parts thereof, of glass (heading 7019 or 7020);

The General EN to Chapter 84 provides:

Since machinery and appliances and parts thereof, of glass (heading 70.19 or 70.20) are excluded from this Chapter, it follows that even if a machine or mechanical appliance is covered, because of its description or nature, by a heading of this Chapter it is not to be classified therein if it has the character of an article of glass.

This applies, for example, to articles of glass, incorporating components of minor importance of other materials, such as stoppers, joints, taps, etc., clamping or tightening bands or collars or other fixing or supporting devices (stands, tripods, etc.).

On the other hand, the following are, as a rule, to be taken to have lost the character of laboratory glassware, or machinery or appliances and parts thereof, of glass :

(i) Combinations of glass components with a high proportion of components of other materials (e.g., of metal); also articles consisting of a high proportion of glass components incorporated or permanently mounted in frames, cases or the like, of other materials.

(ii) Combinations of static components of glass with mechanical components such as motors, pumps, etc., of other materials (e.g., of metal).

Similarly the EN to heading 7020, HTSUS, provides in relevant part:

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.

In accordance with Note 1(c) to Chapter 84, HTSUS, and the EN to heading 7020, HTSUS, the Thermo-Bulb will be classified in heading 7020, HTSUS, if it has the essential character of an article of glass.

The "essential character" test is explained in National Hand Tool Corp. v. United States, 16 C.I.T. 308, 311 (1992). "Character" is defined as "'one of the essentials of structure, form, materials, or function that together make up and usually distinguish the individual.'" Id. (citing Webster's Third New International Dictionary (1981)). Whether the merchandise at issue has the essential character of a component of an article depends on whether the qualities imparted by the component are indispensable to the function of the article. See Better Home Plastics Corp. v. United States, 20 C.I.T. 221, 227, 916 F. Supp. 1265, 1269 (1996), aff'd, 119 F.3d 969 (Fed. Cir. 1997) ("The court finds that, when the indispensable function of keeping water inside the shower enclosure, along with the protective, privacy and decorative functions of the plastic liner are weighed against the decorative function and the relative cost of the outer curtain, it is the plastic liner that imparts the essential character upon the set.").

The factors that determine essential character "vary as between different kinds of goods." See the EN VIII to GRI 3(b). Examples of such factors include the bulk, quantity, and weight of a material, as well as the role of the material in relation to the use of the product. See id.

The glass portion of the Thermo-Bulb explodes when a certain temperature is reached. The liquid expands when the temperature rises causing the bulb to explode. The explosion opens the nozzle of the sprinkler to allow the water to douse the fire. The expansion of the liquid is key to the timing of the bulb exploding. However, the thickness and composition of the glass is critical in holding the liquid, the timing of the bulb exploding and allowing the glass to break so that the water can put out the fire. Accordingly, the Thermo-Bulb has the essential character of glass and is thereby excluded from Chapter 84, HTSUS, by Note 1(c) to Chapter 84, HTSUS.

HOLDING:

Protest number 5501-05-100215 is denied. By application of GRI 1 and Note 1(c) to Chapter 84, HTSUS, the Thermo-Bulbs are classified in heading 7020, HTSUS. They are provided for in subheading 7020.00.60, HTSUS, which provides for “Other articles of glass: Other.” The general, column one rate of duty in effect at the time of entry was 5% ad valorem.

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 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 the decision. Sixty days from the date of the decision Regulations and Rulings of 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

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