**HQ H014347**

September 15, 2008

**CLA-2 OT:RR:CTF:TCM** H014347 RM

**CATEGORY:** Classification

**TARIFF NO.:** 7013.99.50

Port Director

Port of San Diego

United States Customs and Border Protection

1240 North Harbor Drive

San Diego, CA 92101

**RE:** Glass Nail Files; Application for Further Review of Protest No.
2506-07-100009

Dear Port Director:

The following is our decision regarding the Application for Further
Review ("AFR") of Protest No. 2506-07-100009, timely filed by counsel on
behalf of Ilona Zatkova, d.b.a. La Mont, concerning the classification
of glass nail files under the Harmonized Tariff Schedule of the United
States ("HTSUS").

**FACTS:**

This protest concerns glass nail files imported from the Czech Republic
in a variety of unit sizes, ranging from three and a half to seven and a
half inches long. Unit values vary depending on the size, but are priced
between thirty cents and three dollars per nail file. In an affidavit
submitted as part of the AFR, Protestant declared that the manufacturing
process for the nail files is as follows:

1.  A sheet of float glass is purchased by the manufacturer.

2.  A chemical process comprised of hydrofluoric acid is used to roughen
    a portion of the glass body and produce an abrasive surface. The
    chemical process includes selective removal of ions from the surface
    layers of the glass material.

3.  The final shape of the product is formed with the aid of a grinding
    wheel. Grinding of the edges first forms the shape and, second,
    makes edges rounded off. The handle is formed out of the part of the
    glass body that is protected during the chemical reaction.

4.  A final step of chemical hardening is used to increase the rigidity
    and durability of the product.

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C.  The glass nail file is made of float glass, not blown or pressed
    glass. The name "float" is used to describe a method or technology
    for flat glass production. Float technology is the most modern and
    commonly used production of flat glass.

D.  This technology involves pouring hot liquid onto a layer of melted
    liquid tin in order to achieve an absolutely flat and smooth glass
    sheet. Float technology is the most modern and commonly used for
    production of flat glass.

In addition, the nail files are decorated with colors, engraved, and/or
hand painted. The coarseness of the files is attributed to the structure
of the glass; they are not coated or impregnated with an abrasive powder
or grain. The U.S. Customs and Border Protection ("CBP") laboratory
tested a sample of the merchandise and determined the following: "Based
on our analysis and information provided by the importer, the glass
files are chemically toughened but not pressed."

The nail files were entered on various dates between August 23, 2005,
and August 1, 2006, under subheading 8214.20.30, HTSUS, which provides
for: "Manicure or pedicure sets and instruments (including nail files)
...: Manicure or pedicure sets and instruments (including nail files),
and parts thereof: ...nail files ...", in contravention of a binding CBP
decision which classified this merchandise under heading 7013, HTSUS.
See New York Ruling Letter ("NY") L81589, dated January 7, 2005. On
September 1, 2006, and September 22, 2006, CBP reclassified the
merchandise under subheading 7013.99.55, HTSUS, which provides for:
"Glassware of a kind used for table, kitchen, toilet, office, indoor
decoration or similar purposes...: Other glassware: Other: Other: Valued
over \$.030 but not over \$3.00 each," and liquidated all the entries at
issue under this subheading. The instant protest and AFR were filed on
February 23, 2007.

Protestant now alleges that the nail files are properly classified under
subheading 7006.00.40, HTSUS, which provides for: "Glass of heading...
7005 \[float glass\], bent, edge-worked, engraved, drilled, enameled or
otherwise worked, but not framed or fitted with other materials: Other:
Other."

**ISSUE:**

What is the proper tariff classification of the glass nail files under
the HTSUS?

**LAW AND ANALYSIS:**

Initially, we note that the matter is protestable under 19 U.S.C. §
1514(a)(2) as a decision on classification. The protest was timely
filed, within 180 days of liquidation for all involved entries made
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) (2006)).

Further Review of Protest No. 2506-07-100009 was properly accorded to
Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision
against which the protest was filed involves matters previously ruled
upon by the Commissioner of Customs or designee or by the Customs courts
but facts are alleged or legal arguments presented which were not
considered at the time of the original ruling. Specifically, Protestant
alleges that NY L81589, the ruling previously issued on this
merchandise, "contains only a partial discussion of relevant facts and
no legal analysis."

The classification of merchandise under the HTSUS is governed by the
General Rules of Interpretation (\"GRIs\"). GRI 1 provides, in part,
that \"for legal purposes, classification shall be determined according
to 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 GRIs may then be applied in order. The HTSUS
provisions 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:

> Other:

7006.00.40 Other ...

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 glassware:

7013.99 Other:

Other:

Other:

7013.99.50 Valued over \$0.30 but not over

> \$3.00 each....

When interpreting and implementing the HTSUS, the Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) should be
consulted. The ENs, although not dispositive nor legally binding,
provide a commentary on the scope of each heading of the HTSUS and are
generally indicative of the proper interpretation of these headings at
the international level. [See]{.underline} T.D. 89-80, 54 Fed. Reg.
35127, 35128, (August 23, 1989).

At the outset, we note that although the merchandise was entered under
subheading 8214.20.30, HTSUS, that classification has not been raised in
this AFR and will not be discussed.

Protestant argues that the glass nail files are classified as worked
flat glass under heading 7006, specifically in subheading 7006.00.40,
HTSUS. In support of this position, Protestant cites Headquarters Ruling
Letter ("HQ") 087015, dated October 3, 1990, and HQ 958837, dated June
18, 1996. We note, however, that these rulings concerned the
classification of mirrored glass, which is not at issue in this ruling.
Further, it appears that these rulings may be subject to modification or
revocation because they no longer reflect CBP's position on the
classification of mirrored glass. See HQ 968221, dated July 31, 2006.
For both these reasons, we find the cited rulings to be unhelpful in
deciding the classification of the glass nail files at issue.

Heading 7006, HTSUS, provides for, in part, glass of heading 7005,
HTSUS, that is, float glass in sheets. Float glass is not chemically
hardened. Accordingly, in their imported condition, not taking into
account that the files have been edge worked, acid treated, hand
painted, and subjected to an obscuring process and that some are
engraved, the files are outside the scope of heading 7005, HTSUS,
because they have also been chemically hardened. That process is not
allowable under the provisions of heading 7005 or 7006. Consequently,
they are precluded from classification under heading 7006, HTSUS, by the
terms of that heading.

CBP has previously found that glass nail files are classified under
heading 7013, HTSUS, as "glassware of a kind used for.... toilet...or
similar purposes (other than that of heading 7010 or 7018)." See NY
L81589, dated January 7, 2005. The HTSUS does not contain a statutory
definition for "toilet." When a tariff term is not defined by the HTSUS
or the legislative history, its correct meaning is its common or
commercial meaning. [See]{.underline} [Rocknel Fastener, Inc. v. United
States, 267 F.3d 1354, 1356 (Fed. Cir.
2001)](https://www.lexis.com/research/buttonTFLink?_m=02e35417e9edd3fd2c4bade3b1461ca3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B29 Int'l Trade Rep. (BNA) 1810%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=68&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B267 F.3d 1354%2C 1356%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAz&_md5=d80312c96f3b648236a9dad5c4250866).
\"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.\'\" [Id]{.underline}.
(quoting [C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d
1268, 1271, 69 C.C.P.A. 128 (C.C.P.A.
1982)](https://www.lexis.com/research/buttonTFLink?_m=02e35417e9edd3fd2c4bade3b1461ca3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B29 Int'l Trade Rep. (BNA) 1810%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=69&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B673 F.2d 1268%2C 1271%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAz&_md5=e6215edeab60d0830c5535c217446621);
[Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir.
1989))](https://www.lexis.com/research/buttonTFLink?_m=02e35417e9edd3fd2c4bade3b1461ca3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B29 Int'l Trade Rep. (BNA) 1810%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=70&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B872 F.2d 1572%2C 1576%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAz&_md5=32dc5243998f6ce2d5c02f148e57528b).
Finally, the Explanatory Notes, while not binding law, offer guidance as
to how tariff terms are to be interpreted. [See]{.underline} [Len-Ron
Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir.
2003)](https://www.lexis.com/research/buttonTFLink?_m=02e35417e9edd3fd2c4bade3b1461ca3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B29 Int'l Trade Rep. (BNA) 1810%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=71&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B334 F.3d 1304%2C 1309%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAz&_md5=13e066f3cbe5d734d0c21b0ef1487b2c)
(noting Explanatory Notes are \"intended to clarify the scope of HTSUS
subheadings and to offer guidance in their interpretation\").

The Merriam-Webster Dictionary Online
([http://www.m-w.com](http://www.m-w.com/); last viewed August 4, 2008)
defines "toilet" as "2. the act or process of dressing and grooming
oneself." The term "toiletry" is defined as "an article or preparation
(as toothpaste, shaving cream, or cologne) used in cleaning or grooming
oneself -- usually used in plural." Moreover, the ENs to heading 7013,
HTSUS, provide, in part:

> This heading covers the following types of articles, most of which are
> obtained by pressing or blowing in moulds:
>
> \* \* \*
>
> \(2\) **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.
>
> \* \* \*
>
> These articles may be e.g., of ordinary glass ... They may also be
> colourless, colored or of flashed glass, and may be cut, frosted,
> etched or engraved, or otherwise decorated, or of plated glass (for
> example, certain trays fitted with handles).
>
> (Emphasis in original)

The glass nail files in question are tools used to gently grind down and
shape the edges of nails. Moreover, as discussed in the ENs, they are
"etched or engraved, or otherwise decorated." As such, we find them to
be articles used for grooming purposes (i.e., making one's toilet),
classifiable in heading 7013, HTSUS, as glassware of a kind used for
toilet purposes.

Protestant raises several arguments against classifying the nail files
as toilet articles of glass under heading 7013, HTSUS. First, he argues
that the nail files are not "glassware" of heading 7013, HTSUS, because
they are not similar to the exemplars listed in the corresponding ENs.
Specifically, Protestant contends that glassware refers only to items
that hold things. We disagree. In [Los Angeles Tile Jobbers, Inc. v.
United States]{.underline}, 63 Cust. Ct. 248, C.D. 3904 (1969), the
court determined that "\[a\]ll articles of glass are generally defined
as 'glassware.'" Moreover, the ENs list among the exemplars of glassware
items that *do not* hold things, such as glass statuettes, animals,
flowers, foliage and fruits.

Second, Protestant argues that "toilet articles" of heading 7013, HTSUS,
refers only to "container\[s\] or holder\[s\] for something that may be
used in connection with grooming, washing oneself, etc." A glass nail
file, he argues, is not a "toilet article" because it does not "share...
\[t\]he 'container' features that are common to each of the exemplars"
(e.g., soap-dishes, liquid soap distributors, and toothbrush holders).
As defined above, toilet articles are items used for grooming purposes
generally; it is not required that they have "container features."
Further, we note that the examples listed in the ENs to heading 7013,
HTSUS, are only some of the items that may be covered in a particular
category and are not intended to be an all-inclusive listing. For the
same reason, we reject Protestant's contention that the nail files are
not toilet articles because they are not "obtained by pressing or
blowing in moulds," as are most of the exemplars in the ENs to heading
7013, HTSUS.

Finally, Protestant submits that the glass nail files should not be
classified as a toilet or household item because they are not used
exclusively at home, but are primarily used in nail and beauty salons.
We disagree, and note that the actual location in which the product is
used is irrelevant; the heading only requires that the item be glassware
used for personal grooming.

Based on the foregoing, we find that the subject articles are toilet
articles of glass of heading 7013, HTSUS. Our conclusion is consistent
past CBP rulings. [See]{.underline} HQ W966876, dated September 19, 2005
and NY F84367, dated April 7, 2000. NY L81589, dated January 7, 2005,
concerning the classification of this merchandise and previously issued
to Protestant is correct.

With regard to Protestant's suggested alternate classification under
heading 7020, HTSUS, we note that because the nail files are correctly
classified under heading 7013, they are outside the scope of heading
7020, HTSUS. See EN 70.20, "This heading covers glass articles \...
**not covered** ... by other headings of this chapter or of other
chapters of the Nomenclature."

**HOLDING:**

By application of GRI 1, the glass nail files are classified under
heading 7013, specifically in subheading 7013.99.40, HTSUS, which
provides for: \"Glassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purposes . . .: Other glassware:
Other: Other: Other: Valued over \$0.30 but not over \$3 each.\" The
2006 column one, general rate of duty is 30 percent *ad valorem*.

Duty rates are provided for convenience only and are subject to change.
The text of the most recent HTSUS and the accompanying duty rates are
provided on the World Wide Web at
[www.usitc.gov](http://www.usitc.gov/).

Since the rate of duty under the classification indicated above is the
same as the liquidated rate, you are instructed to deny the Protest in
full. 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 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