CLA-2 CO:R:C:M 950837 NLP
District Director
United States Customs Service
701 San Jacinto
P.O. Box 52790
Houston, TX 77052
RE: Protest no. 5301-91-100324; glass candy shaped ornaments;
lampworking; blow lamp; blow-pipe; glass blowing; free-
blowing; subheading 7013.99.50; subheading 7013.99.10;
General Explanatory Note (H) to Chapter 70; Explanatory
Note (G) to heading 7018; NYRL 864870
Dear District Director:
The following is our decision regarding the Protest and
Request for Further Review No. 5301-91-100324, dated July 25,
1991. At issue is the classification of glass candy shaped
ornaments under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The products at issue are glass ornaments in the shapes of
wrapped pieces of candy. These items are produced by a glass-
worker who takes glass rods of a specific color and softens them
over an open flame. When the glass rods have reached the proper
softness, the glassworker shapes the rods by hand over the flame
into the desired design. To add more color into the different
pieces, another rod is softened and added to the piece as it is
being shaped and before it hardens.
A video tape was submitted by counsel which demonstrates the
process by which the glass candy shaped ornaments are made. In
the video tape, a glassworker turned on a tank of gas and a flame
was emitted from a small iron rod. The glassworker took two blue
rods and softened them over the flame. He started to shape them
into the shape of a piece of candy. Before the piece hardened,
he took a yellow rod and a red rod and softened them in the flame
and worked them into the piece. Then, the glassworker put a blue
rod into the flame and used it to shape the tail shaped piece.
The glassworker used an instrument to make a fluted design on the
tail shaped piece. Then, the glassworker made another tail
shaped piece and he used an instrument to make a fluted design on
this tail shaped piece. The tail shaped pieces resembled the
wrapped ends of a piece of candy. The end product was a blue
piece of glass shaped like a piece of candy with red and yellow
stripes. The whole process took about 5 minutes.
Upon importation, the glass pieces were liquidated in
subheading 7013.99.50, HTSUS, which provides for 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, other, other, other, valued over $0.30 but not
over $3 each.
It is counsel's argument that the glass pieces are
classified in subheading 7018.90.50, HTSUS, which provides for
glass beads, imitation pearls, etc...; statuettes and other
ornaments of lamp-worked glass, other than imitation jewelry;
etc..., other, other. In the alternative, counsel contends that
the glass pieces are classified in subheading 7013.99.10, HTSUS,
which provides for 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, other, glassware
decorated with metal flecking, glass pictorial scenes or glass
thread- or ribbon-like effects, any of the foregoing embedded or
introduced into the body of the glassware prior to its
solidification; millefiori glassware; glassware colored prior to
solidification, and characterized by random distribution of
numerous bubbles, seeds or stones, throughout the mass of the
glass.
ISSUE:
Are the glass pieces classified as other glassware in
subheading 7013.99.50, HTSUS, or as ornaments of lamp-worked
glass in subheading 7018.90.50, HTSUS, or as glassware decorated
with glass thread- or ribbon-like effects; millefiori glassware
or glassware colored prior to solidification, and characterized
by random distribution of numerous bubbles, seeds or stones,
through out the mass of the glass in subheading 7013.99.10,
HTSUS.
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification 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's may be applied, taken in
order.
Heading 7013, HTSUS, provides for glassware of a kind used
for table, kitchen, toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or 7018). Heading
7018, HTSUS, provides for, inter alia, statuettes and other
ornaments of lamp-worked glass. Therefore, if the subject pieces
are considered to be lamp-worked glass, they would not be
classified in heading 7013, HTSUS, but in heading 7018, HTSUS.
The Harmonized Commodity Description and Coding System
(HCDCS) General Explanatory Note (H) to Chapter 70, page 926,
states that lampworking is performed with the aid of a blow lamp,
for the manufacture of ampoules, fancy articles, etc., from glass
rod or tubing. HCDCS Explanatory Note (G) to heading 7018, page
942, provides the following:
(G) Statuettes and other ornaments (other than imitation
jewellery) obtained by working glass in the pasty state
with a blow-pipe. These articles are designed for
placing on shelves (animals, plants, statuettes, etc.).
They are generally made of clear glass (lead crystal,
strass, etc.) or "enamel" glass.
The HCDCS Explanatory Notes constitute the Customs
Cooperation Council's official interpretation of the Harmonized
System. They provide a commentary on the scope of each heading
of the Harmonized System and are thus useful in ascertaining the
classification of merchandise under the system. While the
Explanatory Notes should be consulted for guidance, they should
not be treated as dispositive. H. Conf. Rep. No. 576, 100th
Cong., 2d Sess., 549, reprinted in 1988 U.S CODE CONG. & ADMIN.
NEWS 1582; 54 Fed. Reg. 35127, 35128, August 23, 1989.
Therefore, though the glass pieces are not obtained by working
glass in the pasty state with a blow-pipe, after reviewing
various definitions and discussions on glass shaping and the
tools involved, they are not necessarily eliminated from
classification as lamp-worked ornaments.
Blow-pipes are most often used in the glass forming process
called "glass blowing" or "free-blowing", rather than in
lampworking. A blow-pipe is defined as a long narrow iron pipe
used to gather, work, and blow molten glass. Webster's II New
Riverside University Dictionary, 1984. The McGraw-Hill
Encyclopedia of Science & Technology, Volume 2, defines a
blowpipe in the following manner:
In glass blowing, a long straight tube on which molten
glass is gathered and worked, partly by blowing into
the tube. The blowpipe is spun to shape the glass
object further by centrifugal force, or by a tool, in
which case the blowpipe acts as a spindle for turning.
In Two Hundred Years of American Blown Glass, by Helen and
George S. McKearin, Doubleday & Company, Inc, 1950, on page 2, it
states the following:
That basic tool, the blowpipe, etc..., has been
attributed to the Sidonians. Then, as today, gathering a
glob of molten viscous metal on the end of this hollow tube,
the blower would inflate it, extending the resulting bubble
to the size desired. With a simple tonglike spring tool he
would fashion the bubble into the shape he envisioned. We
call this process free-blowing.
In addition, in Flameworking- Glassmaking for the Craftsman, by
Frederic Schuler, Chilton Book Company, the technique of free-
blowing is discussed on page 7:
Free-blowing (or offhand blowing) is more difficult,
requiring rather elaborate and expensive facilities. This
technique was invented around 50 B.C. (glassmaking was
already 1500 years old then). The glass is manipulated at
the end of a hollow iron pipe (the blowpipe or blowiron),
which is about four feet long. Molten glass is made within
a refractory container in a furnace, either by remelting
marbles of chunks of glass, or by fusing together the raw
materials that form glass. The fluid glass is wound upon or
"gathered" on the tip of the hollow iron pipe. It is then
shaped and manipulated, inflated, tooled, sheared, and spun
out or forced in, etc....
As has been explained above, a blow-pipe is associated with
the technique of glass-blowing/free-blowing. Therefore, the fact
that the glass pieces are not worked in the pasty shape by a
blow-pipe is not dispositive of whether they are lamp-worked or
not. Thus, it must be determined whether they are in fact made
by the lamp-worked process.
The dictionary definition of lampworking states that it is
the process of fashioning objects from glass tubing and cane
softened to workability over the flame of a small lamp. The
definition states that it should be compared with glassblowing,
which is defined as an art of shaping a mass of glass by
inflating it through a tube after the glass has been heated to a
viscid state. Webster's Third New International Dictionary.
In Flameworking-Glassmaking for the Craftsman, Frederic
Schuler writes the following regarding lampworking, on page 7:
This book will concentrate on flameworking techniques,
but will describe both flameworking and free-blowing. The
technique of flameworking, or reheating glass rod or tubing
or other pieces of glass, was once called "lampworking."
This method was used as early as 1660 to shape microscope
lenses; the simple burners were derived form small oil
lamps. With this technique, the glass was heated in a
relatively small area where pieces were to be sealed,
enlarged, or changed in some manner. The cool ends of the
glass were held in the hands, which controlled the rotation
and position of the fluid central portion. Today, with a
simple workbench, a few tools, and burner which uses gas
with oxygen or air, this procedure shapes marvelous jewels
of glass in a direct manner.
In Phaidon Guide to Glass, by Felice Mehlman, lampworking is
defined as follows on page 13:
Working at the lamp
For making small glass objects such as toys,
trinkets and beads, the craftsman would work "at the
lamp", where rods of annealed glass could be heated in
the concentrated flame of an oil lamp (or later, a
Bunsen burner) and shaped by tools.
It is our position that lampworking should be defined by the
technique and the types of equipment used. Given the variety of
forms a "blow lamp" may now take, if a glassworker softens glass
rods and manipulates them over an oil lamp, a bunsen burner or
any other "lamp" producing a hot flame, this method of glass
shaping should be considered "working at the lamp". Thus, based
on the evidence presented regarding the method used to make these
pieces, they are made by the lampworking process. Accordingly,
they are classified in heading 7018, HTSUS. More specifically,
the pieces are classified in subheading 7018.90.50, HTSUS.
In New York Ruling Letter (NYRL) 864870, dated July 22,
1991, glass shaped candies that were produced by a glassworker
who took glass rods and softened them over an open flame and then
shaped them into the desired design when the glass had reached
the proper softness, were classified under subheading 7013.99.50,
HTSUS. In that ruling we did not consider the classification of
the pieces in heading 7018, HTSUS. As we consider this method of
glass shaping to be lampworking, the pieces should be classified
in subheading 7018.90.50, HTSUS. Therefore, NYRL 864870 is
revoked pursuant to section 177.9(d) of the Customs Regulations
[19 CFR 177.9(d)].
HOLDING:
The protest should be approved. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division