February, 2019
The Power of Analogy in Tariff Classification
Mark K. Neville, Jr.
One of the unheralded virtues of a successful tariff classification practice is the ability to draw upon a well-developed imagination. That is because, despite the fact that that the Harmonized System is comprised of thousands of separate tariff lines, and the Harmonized Tariff Schedule of the United States (HTSUS) many thousands more annotations, not every individual article of imported merchandise will be specifically identified.
Because of that residual ambiguity the professional endeavoring to classify the merchandise must fall back on an ability to see whether there are either connections or parallels with other, previously imported and classified goods or, conversely, whether there are distinctions between the goods under review and other goods. Another way of looking at the issue is to ask if there are goods that are “like” those under review, and still another way of framing the question is whether there are analogous goods. This power of discerning analogies in products, i.e., their underlying similarities, or distinctions, i.e., underlying differences, is often critical to the process.
The imported article has been made from float glass sheets which have been further processed: inspection, lamination, film exposure, developing, cutting by sandblasting, healing, film exfoliation, cleaning, chemical strengthening (tempering), cleaning and inspection, anti-fingerprint coating, full lamination, final inspection and packing. In short, the glass is both tempered and laminated with a plastic coating.1
The glass covers are specifically designed and cut to a size so as to fit as protective screens for various mobile phone devices.
Another important consideration is Additional U.S. Rule of Interpretation 1(c), which provides as follows:
While our research does not reveal any rulings in which CBP has classified a glass cell phone cover. But here is where the imagination kicks in. What about a phone cover made of plastic? We find that there are several rulings which have assigned tariff classifications to cell phone covers of plastic. For example, in ruling no N215119 (5/24/12), CBP held that the back cover of a cell phone made of molded plastic and designed to fit snugly onto the phone was classified under item no. 3926.90.9980, HTSUS, which provides for other articles of plastics, other, with a rate of duty will be 5.3% ad valorem.
This was the same result in ruling no. N148755 (3/16/11) for a two-piece cover for a slider phone. The cover was molded from polycarbonate plastic. One piece of the cover snaps onto the back of a slider cell phone while the other piece snaps onto the front of the phone. The two pieces functioned independently and did not interconnect with each other to form a case.
Another ruling, no. N232861 (9/20/12), reached the same result. There, the product was a rigid plastic cover designed to snap onto the back of an iPhone.2 The applicable subheading for the cell phone back cover was item no. 3926.90.9980, HTSUS, which provides for other articles of plastics, other. The rate of duty was 5.3% ad valorem. See also ruling nos. N230129 (9/5/12) and N234603 (11/15/12).
We have discovered one outlier ruling, no. L87501 (9/16/05) in which CBP classified a plastic faceplate cover plastic cover for a cellular (mobile phone). The plastic cover was designed solely for the Sony Ericsson cellular telephone. As the faceplate cover it provides the user with necessary protection from the internal components. It protects the phone from the elements and provides for the safe and efficient operation of the cellular telephone. CBP classified the cover in item no. 8529.90.9900, HTSUS, as a part of articles classified in headings 8525-8528 [sic]. This ruling is suspect and could be discarded.
All of this review was taking place in 2015. Assume that the reviewer advises the importer based upon that analysis at that time.
The importer and its adviser would feel more secure if there were some later corroboration. A later update of the review would have shown that similar results were later obtained in ruling nos. H284146 (6/20/17) and N291060 (10/20/17). Importantly, the latter ruling cited as judicial precedent the protective cases in Otter Prods., LLC v. United States, 70 F. Supp. 3d 1281 (CIT 2015), aff’d, 834 F.3d 1369 (Fed. Cir. 2016). Those decisions classified two styles of durable and protective cases designed for certain types of cell phones in subheading 3926.90.99, HTSUS. Thus, with a single, suspect exception, we see that plastic protective covers for cell phones have been consistently classified as other articles of plastic.
So, how does this influence the tariff classification of our glass covers?
If we apply the logic of these rulings directly to this imported article, we find that the imported glass covers should be classified, by operation of GRI 1, as other articles of glass, under item no. 7020.00.6000, HTSUS, with a duty rate of 5.0% ad valorem. You will recognize that this is the directly analogous provision for glass articles to the plastic articles’ tariff treatment in item no. 3926.90.9980, HTSUS. In the same fashion that the plastic cell phone covers were not classified in item no. 8517.70—in fact, the cited rulings show that CBP never even considered such a “parts” classification--so too should the glass covers be excluded therefrom.3 We would then proceed to validate that selection.
The subject glass covers are made from tempered glass. Because they have been extensively worked and have been designed and cut to various specific shapes to fit various specific mobile devices, it would appear that they should be classified as articles of glass.
Parenthetically, we note that, based upon the lamination steps shown on the flowcharts, one might assume that the glass could be seen to be laminated glass for tariff classification purposes. That would carry a classification within subheading 7007.29. However, the ENs point out that lamination for these purposes connotes a safety glass that is made in “sandwich” form, with one or more interlayers of plastics between two or more sheets of glass. The imported glass cover is a single sheet covered with a layer of plastics but the distinctive “sandwich” layering is absent. Thus, the constituent glass is not a laminated glass for these tariff classification purposes.
Articles of tempered glass are classified
outside subheading 7007.19
Unlike heading 7006, “articles” of the subject safety glass (whether tempered or laminated) are not specifically provided for in heading 7017.8 In fact, heading 7013 contains three separate tariff provisions for articles of “specially tempered” glass, defined as glass that has been “pressed and toughened.” These are item numbers 7013.42.10, 7013.49.10 and 7013.99.10, HTSUS. But we also know that articles made from glass that has been merely tempered, i.e., not pressed as well, can also be classified in heading 7013, e.g., in item no. 7013.42.2000, HTSUS.9
In the same way that tempered glass articles for table, kitchen or any of the other purposes named in subheading 7013.49 must be classified outside subheading 7007.19 and placed within subheadings 7013.42, 7013.42 and 7013.99, the mere fact that the covers are made of tempered glass should not keep them in subheading 7007.19. Ruling no. N109375 is authority for the proposition that item no. 7013.49.2000, HTSUS,10 does not specifically require tempering, but that tempered glassware articles will be classified therein nevertheless.
As shown above, the glass covers have been advanced to the point that they are clearly identified as “articles” which would remove them from consideration for classification under subheading 7007.19. In this connection, we note that Chapter Note 3 to Chapter 70, HTSUS, states that
Classification in heading
7020 is correct We are mindful that 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.11 In this case, no other heading can apply to the glass covers. They are not articles which are intended for any of the named uses that define the “principal use” provisions of subheading 7013.49, i.e., table, kitchen, toilet, office, indoor decoration or similar purposes.12 At the same time, also as discussed above, they are not parts of telephones of subheading 8517.70 and, having the character of “articles,” they cannot be classified in subheading 7007.19.
The tempered glass covers for the mobile phones should be classified as articles of glass in item no. 7020.00.6000, HTSUS. There is no contrary authority which holds that articles of tempered glass cannot be classified in that item number.
Inspired solutions, indeed.
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Because of that residual ambiguity the professional endeavoring to classify the merchandise must fall back on an ability to see whether there are either connections or parallels with other, previously imported and classified goods or, conversely, whether there are distinctions between the goods under review and other goods. Another way of looking at the issue is to ask if there are goods that are “like” those under review, and still another way of framing the question is whether there are analogous goods. This power of discerning analogies in products, i.e., their underlying similarities, or distinctions, i.e., underlying differences, is often critical to the process.
Imported glass cover for cellular telephone
Let’s look at an example of the process. Imagine it is 2015 and you are asked to assign a tariff classification to an imported glass cover that will be sued to protect cell phone screens. There is no specific tariff item for such an imported article.The imported article has been made from float glass sheets which have been further processed: inspection, lamination, film exposure, developing, cutting by sandblasting, healing, film exfoliation, cleaning, chemical strengthening (tempering), cleaning and inspection, anti-fingerprint coating, full lamination, final inspection and packing. In short, the glass is both tempered and laminated with a plastic coating.1
The glass covers are specifically designed and cut to a size so as to fit as protective screens for various mobile phone devices.
Question presented
How should the glass covers be classified?Tariff Classification Principles
Classification of imported articles into the United States is in accordance with the principles set forth in the HTSUS. Specifically, tariff classification should be made by application of the General Rules of Interpretation (GRIs). GRI 1 establishes that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. However, if GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRIs are applied, taken in order.Another important consideration is Additional U.S. Rule of Interpretation 1(c), which provides as follows:
In the absence of special language or context which otherwise requires:
(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory;
Status as part of a Telephone?
The Additional US Rule teaches us that the “parts” provision is a fall back, and to be applied only if the imported article is not properly classified in another provision. Thus perhaps the first issue that must be addressed is whether the glass covers for the cellular phones should be considered as parts of telephones, and thus classifiable under item no. 8517.70.0000, HTSUS, with a free rate of duty, or classified in another provision, perhaps in chapter 70 which covers various types of glass and articles of glass.While our research does not reveal any rulings in which CBP has classified a glass cell phone cover. But here is where the imagination kicks in. What about a phone cover made of plastic? We find that there are several rulings which have assigned tariff classifications to cell phone covers of plastic. For example, in ruling no N215119 (5/24/12), CBP held that the back cover of a cell phone made of molded plastic and designed to fit snugly onto the phone was classified under item no. 3926.90.9980, HTSUS, which provides for other articles of plastics, other, with a rate of duty will be 5.3% ad valorem.
This was the same result in ruling no. N148755 (3/16/11) for a two-piece cover for a slider phone. The cover was molded from polycarbonate plastic. One piece of the cover snaps onto the back of a slider cell phone while the other piece snaps onto the front of the phone. The two pieces functioned independently and did not interconnect with each other to form a case.
Another ruling, no. N232861 (9/20/12), reached the same result. There, the product was a rigid plastic cover designed to snap onto the back of an iPhone.2 The applicable subheading for the cell phone back cover was item no. 3926.90.9980, HTSUS, which provides for other articles of plastics, other. The rate of duty was 5.3% ad valorem. See also ruling nos. N230129 (9/5/12) and N234603 (11/15/12).
We have discovered one outlier ruling, no. L87501 (9/16/05) in which CBP classified a plastic faceplate cover plastic cover for a cellular (mobile phone). The plastic cover was designed solely for the Sony Ericsson cellular telephone. As the faceplate cover it provides the user with necessary protection from the internal components. It protects the phone from the elements and provides for the safe and efficient operation of the cellular telephone. CBP classified the cover in item no. 8529.90.9900, HTSUS, as a part of articles classified in headings 8525-8528 [sic]. This ruling is suspect and could be discarded.
All of this review was taking place in 2015. Assume that the reviewer advises the importer based upon that analysis at that time.
The importer and its adviser would feel more secure if there were some later corroboration. A later update of the review would have shown that similar results were later obtained in ruling nos. H284146 (6/20/17) and N291060 (10/20/17). Importantly, the latter ruling cited as judicial precedent the protective cases in Otter Prods., LLC v. United States, 70 F. Supp. 3d 1281 (CIT 2015), aff’d, 834 F.3d 1369 (Fed. Cir. 2016). Those decisions classified two styles of durable and protective cases designed for certain types of cell phones in subheading 3926.90.99, HTSUS. Thus, with a single, suspect exception, we see that plastic protective covers for cell phones have been consistently classified as other articles of plastic.
So, how does this influence the tariff classification of our glass covers?
If we apply the logic of these rulings directly to this imported article, we find that the imported glass covers should be classified, by operation of GRI 1, as other articles of glass, under item no. 7020.00.6000, HTSUS, with a duty rate of 5.0% ad valorem. You will recognize that this is the directly analogous provision for glass articles to the plastic articles’ tariff treatment in item no. 3926.90.9980, HTSUS. In the same fashion that the plastic cell phone covers were not classified in item no. 8517.70—in fact, the cited rulings show that CBP never even considered such a “parts” classification--so too should the glass covers be excluded therefrom.3 We would then proceed to validate that selection.
Classification under heading 7020
In this connection, 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.4
Classification elsewhere in Chapter 70?
Since the ENs direct us to do so, and having already concluded that subheading 8517.70 does not apply, we examine if another tariff heading for glass in chapter 70 is more appropriate. We believe that tariff classification as tempered glass, classified under item, no. 7007.19.0000, HTSUS, with the same 5.0% ad valorem duty rate, is not appropriate. The Explanatory Notes to the Harmonized System play a strong role in the tariff classification process. CBP takes the following viewIn understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989).5
In the ENs for heading 7007 we find that 7007.19 covers tempered glass, defined as follows: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 re-heating 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”).
The subject glass covers are made from tempered glass. Because they have been extensively worked and have been designed and cut to various specific shapes to fit various specific mobile devices, it would appear that they should be classified as articles of glass.
Parenthetically, we note that, based upon the lamination steps shown on the flowcharts, one might assume that the glass could be seen to be laminated glass for tariff classification purposes. That would carry a classification within subheading 7007.29. However, the ENs point out that lamination for these purposes connotes a safety glass that is made in “sandwich” form, with one or more interlayers of plastics between two or more sheets of glass. The imported glass cover is a single sheet covered with a layer of plastics but the distinctive “sandwich” layering is absent. Thus, the constituent glass is not a laminated glass for these tariff classification purposes.
The imported glass covers are articles
The character of being an article of glass may be presumed to be attained once the glass has been worked after annealing6 for glass within headings 7003, 7004 and 7005 or has otherwise been advanced to a fitness for a specific purpose.7 Finally, as we have noted above, these imported goods are the direct analogues of the plastic covers that were classified as “articles” of plastics. Each of the imported glass covers, designed for use with a specific model, are articles of glass for tariff classification purposes.Articles of tempered glass are classified
outside subheading 7007.19
Unlike heading 7006, “articles” of the subject safety glass (whether tempered or laminated) are not specifically provided for in heading 7017.8 In fact, heading 7013 contains three separate tariff provisions for articles of “specially tempered” glass, defined as glass that has been “pressed and toughened.” These are item numbers 7013.42.10, 7013.49.10 and 7013.99.10, HTSUS. But we also know that articles made from glass that has been merely tempered, i.e., not pressed as well, can also be classified in heading 7013, e.g., in item no. 7013.42.2000, HTSUS.9
In the same way that tempered glass articles for table, kitchen or any of the other purposes named in subheading 7013.49 must be classified outside subheading 7007.19 and placed within subheadings 7013.42, 7013.42 and 7013.99, the mere fact that the covers are made of tempered glass should not keep them in subheading 7007.19. Ruling no. N109375 is authority for the proposition that item no. 7013.49.2000, HTSUS,10 does not specifically require tempering, but that tempered glassware articles will be classified therein nevertheless.
As shown above, the glass covers have been advanced to the point that they are clearly identified as “articles” which would remove them from consideration for classification under subheading 7007.19. In this connection, we note that Chapter Note 3 to Chapter 70, HTSUS, states that
The products referred to in heading 7006 remain classified in that heading whether or not they have the character of articles.
If we apply the rule of statutory construction “expressio unius est exclusio alterius” (the mention of only one excludes the other), then we see that products in heading 7007 (unlike those that fall in heading 7006) that have advanced to the point that they have the character of “articles” do not remain classified in heading 7007.Classification in heading
7020 is correct We are mindful that 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.11 In this case, no other heading can apply to the glass covers. They are not articles which are intended for any of the named uses that define the “principal use” provisions of subheading 7013.49, i.e., table, kitchen, toilet, office, indoor decoration or similar purposes.12 At the same time, also as discussed above, they are not parts of telephones of subheading 8517.70 and, having the character of “articles,” they cannot be classified in subheading 7007.19.
The tempered glass covers for the mobile phones should be classified as articles of glass in item no. 7020.00.6000, HTSUS. There is no contrary authority which holds that articles of tempered glass cannot be classified in that item number.
Conclusion
We have illustrated how a tariff classification comes to be assigned to an article (a protective glass cover for a cellular telephone) that is not specifically named in the HTSUS. The central role of the argument by analogy—or the application of a “parity of reasoning” approach—in that process should be apparent.Inspired solutions, indeed.
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1. See discussion on lamination below.
2. The product was further described as follows: It is molded of polycarbonate plastic that is printed with a decorative pattern. The cover is essentially flat with two curved sides to enclose the two long edges of the phone. The back incorporates a small oval cut-out for the camera lens and one of the curved sides incorporates a cut-out to provide access to the volume controls. The cover does not have transverse sides to protect the short edges of the phone, and it does not extend over any portion of the front of the phone, leaving the entire face and two sides of the phone completely exposed.
3. An illustration of the operation of the parts vs. specific tariff provision (in the context of chapters 84 and 85) is in evidence in ruling no. H070632 (1/10/11) (battery pack for a cell phone classified as a battery not as a telephone part).
4. For a useful analysis of the tariff classification process leading to an item no. 7020.00.6000, HTSUS, classification, see ruling no. H168575 (1/18/13).
5. This oft-repeated text was selected at random from ruling no. 953359 (5/26/93).
6. Note 2 (a), Chapter 70, HTSUS. See ruling no. H192355 (8/5/13).
7. See the EN for heading 7006 above.
8. See the EN for heading 7006.
This heading covers not only flat glass in the form of semi-finished products (e.g., sheets without any particular purpose), but also articles of flat glass designed for a specific purpose.
9. See, e.g., ruling no. N109375 (8/5/10) (tempered vs. specially tempered glassware).
10. This covers glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than of glass-ceramics: other: other: valued not over three dollars each.
11. See Pomeroy Collection, Inc. v. United States, 26 CIT 624, 631 (2002).
12. See the discussion in ruling nos. H168575 (1/18/13) and H188937 (1/18/13).
2. The product was further described as follows: It is molded of polycarbonate plastic that is printed with a decorative pattern. The cover is essentially flat with two curved sides to enclose the two long edges of the phone. The back incorporates a small oval cut-out for the camera lens and one of the curved sides incorporates a cut-out to provide access to the volume controls. The cover does not have transverse sides to protect the short edges of the phone, and it does not extend over any portion of the front of the phone, leaving the entire face and two sides of the phone completely exposed.
3. An illustration of the operation of the parts vs. specific tariff provision (in the context of chapters 84 and 85) is in evidence in ruling no. H070632 (1/10/11) (battery pack for a cell phone classified as a battery not as a telephone part).
4. For a useful analysis of the tariff classification process leading to an item no. 7020.00.6000, HTSUS, classification, see ruling no. H168575 (1/18/13).
5. This oft-repeated text was selected at random from ruling no. 953359 (5/26/93).
6. Note 2 (a), Chapter 70, HTSUS. See ruling no. H192355 (8/5/13).
7. See the EN for heading 7006 above.
8. See the EN for heading 7006.
This heading covers not only flat glass in the form of semi-finished products (e.g., sheets without any particular purpose), but also articles of flat glass designed for a specific purpose.
9. See, e.g., ruling no. N109375 (8/5/10) (tempered vs. specially tempered glassware).
10. This covers glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than of glass-ceramics: other: other: valued not over three dollars each.
11. See Pomeroy Collection, Inc. v. United States, 26 CIT 624, 631 (2002).
12. See the discussion in ruling nos. H168575 (1/18/13) and H188937 (1/18/13).
Mark K. Neville, Jr., LL.M. (International Legal Studies), NYU, is a long-time member of the Board of Advisors. He is Principal of International Trade Counsellors and may be reached at mkneville@itctradelaw.com. He has served as an adjunct professor at The University of California, Berkeley’s Haas School of Business and NYU’s Stern School. He is The Journal’s Customs & Trade correspondent.