Application for Further Review of Protest No. 2704-11-101310; Tariff classification of glass dildos.

HQ H188937 January 18, 2013 CLA-2 OT:RR:CTF:TCM H188937 RES CATEGORY: Classification TARIFF NO.: 7020.00.6000 Port Director Service Port-Los Angeles/Long Beach Seaport 301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802 ATTN: David Shaw, Import Specialist RE: Application for Further Review of Protest No. 2704-11-101310; Tariff classification of glass dildos. Dear Port Director: This letter is in reply to the Application for Further Review (“AFR”) of Protest number 2704-11-101310, filed June 27, 2011, on behalf of Pipedream Products Inc. (”Pipedream”). The Protest is against U.S. Customs and Border Protection’s (“CBP”) classification of glass dildos under heading 7013, of the Harmonized Tariff Schedule of the United States (“HTSUS”), as “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes.” FACTS: The articles at issue in this AFR are called dildos that are made of glass and come in various cylinder/rod like shapes and sizes. They are used for sexual stimulation. The AFR involves an entry for articles entered on October 31, 2010, classified by the importer under subheading 7020.00.60, HTSUS, as “[o]ther articles of glass: [o]ther.” CBP liquated the entry on January 3, 2011, classified under subheading 7013.99.90, HTSUS, as “[g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): [g]lassware used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: [o]ther: [o]ther: [v]alued over $3 each: [o]ther: [v]alued over $5 each.” Pipedream filed its Protest and AFR on June 27, 2011, asserting that the glass dildos are classifiable under heading 9019, HTSUS, as massagers, or under heading 7020, HTSUS, as other articles of glass. ISSUE: Whether the glass dildos are classified as household articles of glass under heading 7013, HTSUS, or as other articles of glass under heading 7020, HTSUS, or as massagers under heading 9019, HTSUS? LAW AND ANALYSIS: Initially, CBP notes that the Protest was timely filed on June 27, 2011, which is within 180 days after the liquidation date of January 3, 2011. See 19 U.S.C. § 1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. § 1514(a)(2). Further Review of Protest No. 2704-11-101310 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a). The Protestant asserts that CBP’s classification of the articles is inconsistent with CBP rulings, which concern the same or substantively similar merchandise, namely Headquarters Ruling Letters (“HQ”) H053896 and H053987, both dated May 3, 2010, NY N034769 dated August 18, 2008, and NY L85113, dated May 24, 2005. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 and if the headings and legal notes do not otherwise require, the remaining GRI 2 through 6 may be applied in order. The 2010 HTSUS headings under consideration in this case are as follows: 7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other articles of glass: 9019 Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories: In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The relevant ENs for heading 70.13, provide in pertinent part: This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds: (1) Table or kitchen glassware, e.g. drinking glasses, goblets, tankards, decanters, infants’ feeding bottles, pitchers, jugs, plates, salad bowls, sugar-bowls, sauce-boats, fruit-stands, cake-stands, hors d’oeurvre dishes, bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew-pans, casseroles, trays, salt cellars, sugar sifters, knife-rests, mixers, table hand bells, coffee-pots and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee-mills, cheese dishes, lemon squeezers, ice-buckets. (2) Toilet articles, such as soap-dishes, sponge-baskets, liquid soap distributors, hooks and rails (for towels, etc.), powder bowls, perfume bottles, parts of toilet sprays (other than heads) and tooth-brush holders. (3) Office glassware, such as paperweights, inkstands and inkwells, book ends, containers for pins, pen-trays and ashtrays. (4) Glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table-centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views. * * * * * Articles of glass combined with other materials (base metal, wood, etc.), are classified in this heading only if the glass gives the whole character of glass articles. . . . * * * * * (Emphases in original). The relevant ENs for heading 70.20, provide, in pertinent 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. * * * * * EN(II) to heading 90.19 provides in pertinent part: (II) MASSAGE APPARATUS  Apparatus for massage of parts of the body (abdomen, feet, legs, back, arms, hands, face, etc.) usually operate by friction, vibration, etc. They may be hand or poweroperated, or may be of an electromechanical type with a motor built in to the working unit (vibratorymassaging appliances). The latter type in particular may include interchangeable attachments (usually of rubber) to allow various methods of application (brushes, sponges, flat or toothed discs, etc.).  This group includes simple rubber rollers or similar massaging devices.  It also covers hydromassage appliances for all-over or partial massage of the body, using the action of water or a blend of water and air under pressure.  Examples of these appliances include spa baths, presented complete with pumps, turbines or blowers, ducts, controls and all fittings; devices for massaging the breasts, using the action of water distributed by a series of small nozzles mounted inside a form fitted over the breast, and made to revolve by a stream of water introduced through a flexible tube.  The headings under consideration are headings 9019, 7013, and 7020, HTSUS. These are addressed in turn. Heading 9019 The importer cites HQ H053987 and HQ H053986 as support for its claim that its glass dildos are massagers classified under heading 9019. However, the articles in H053987 (vibrating condom ring) and H053986 (finger vibrator) differ in two critical aspects: (1) both of those articles are powered by batteries to produce a vibrating sensation and (2) those articles are simply completely different articles and function differently. Thus, HQ H053987 and HQ H053986 do not support classification of the glass dildos in heading 9019, HTSUS. The glass dildos are not classifiable under heading 9019, HTSUS, because they are not an electro-mechanical apparatus nor do the glass dildos have features such as rollers, balls, spherical tips, etc. that are designed to massage and reduce friction. Heading 7013 Heading 7013, HTSUS, is a "principal use" provision within the meaning of Additional U.S. Rule of Interpretation (AUSRI) 1(a), HTSUS. Automatic Plastic Molding, INC. v. United States, 26 CIT 1201, 1205 (2002) (stating that subheading 7013.39.20 is a principal use provision and highlighting in footnote 4 that CBP has concluded that heading 7013 is a principal use tariff provision) . In determining whether the principal use of a product is for table, kitchen, toilet, office, indoor decoration or similar purposes, and thereby classified in heading 7013, HTSUS, Customs considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels, class or kind of trade in which the merchandise moves; (4) the environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed); (5) usage, if any, in the same manner as merchandise which defines the class. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976). Not all of these factors will necessarily be relevant in every situation. The class or kind of articles classified in 7013 are table, kitchen, toilet, office, indoor decoration or articles used for similar purposes.  The instant glass dildos could not be described as a table, kitchen, office or decorative article.  The only possible similarities could be to a toilet article.  But here too, like the articles listed with it, glass toilet articles such as soap dishes, perfume bottles, toothbrush holders and the like are useful items often displayed. They are advertised and sold in various general merchandise locations.  Sex toys are not of such a general merchandise category and do not move in the channels of trade as such merchandise.  Nor would the sensibilities of the average consumer make such an equation economically viable. Rather, the discreet nature of the instant merchandise distinguishes it from the decorative and utilitarian merchandise of the heading. Hence, in accordance with NY L85113 and NY N034769, classifying plastic sex toys under the basket provision for other articles of plastic rather than under the heading for kitchen, toilet and similar articles of plastics, the instant merchandise is not classified in heading 7013. Heading 7020 Heading 7020, HTSUS, is a residual basket provision encompassing all “other articles of glass” which is used only when an item is not properly classifiable under some other heading. See Pomeroy Collection, Inc. v. United States, 26 C.I.T. 624, 631 (2002). Because the glass dildos are not classifiable under headings 9019 or 7013, HTSUS, or any other heading, the appropriate heading for these articles is the catch-all provision under heading 7020, HTSUS. Therefore, the glass dildos are classified under heading 7020, HTSUS, as “[o]ther articles of glass.” HOLDING: Pursuant to GRI 1, the glass dildos are classified under subheading 7020.00.6000, HTSUSA, which provides for “[o]ther articles of glass: [o]ther.” The column one, rate of duty, is 5 percent ad valorem. The Protest should be GRANTED. Since the classification indicated above is a different provision from the classification under which the entry was liquidated, you are instructed to grant the protest in full and reliquidate the entry pursuant to subheading 7020.00.60, HTSUS. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the protest. Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the U.S. Customs and Border Protection Home Page on theWorld 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