CLA-2 RR:CR:GC 962732K
Port Director
U.S. Customs Service
2350 N. Sam Houston Parkway
Houston, Texas 77032
RE: Protest 5301-99-100093; Glass Frit
Dear Port Director:
The following is our response to the referral by your office, dated April 7, 1999, of the request for further review of the above-referenced protest.
FACTS:
The consumption entries covering the imported merchandise were reported as being liquidated between December 11, 1998, and January 4, 1999, under the provision for other glass frit and other glass not ground or pulverized, in subheading 3207.40.50, Harmonized Tariff Schedule of the United States (HTSUS). A timely protest under 19 U.S.C. 1514 was received on February 12, 1999. The protestant requested reliquidation of the entries under the provision for other glass frit and other glass, ground or pulverized, in subheading 3207.40.10, HTSUS.
Customs Laboratory Report No. 5-1998-30409 dated April 30, 1998, describes a sample of the merchandise as being composed of fragments of glass ranging in size from 1 MM to 5 MM and that the fragments are in various shapes (angular, rounded, cylindrical, etc.). The report concluded that the sample is not in the form of a powder, granules or flakes, and it is not ground or pulverized.
The protestant refers to the supplier’s description of the merchandise as being in “granular” form to support the position that the glass is “ground or pulverized”.
ISSUE:
The issue is whether the glass is in “ground or pulverized” form.
LAW AND ANALYSIS:
Heading 3207.40, HTSUS, at the six digit level, provides for glass frit and other glass, in the form of powder, granules or flakes. There is a break out at the eight digit level, subheading 3207 40.10, HTSUS, which provides for glass frit and other glass that is ground or pulverized and further at the eight digit level, subheading 3207.40.50, HTSUS, provides for other glass that is not ground or pulverized.
The protestant equates the term “granular” with the term “ground or pulverized”. Granular is defined as containing or consisting of grains or granules. Granule is defined as a small grain. Grain is defined as a tiny solid particle, as of salt or sand...also crystallization, esp. of sugar. (Webster’s New World Dictionary, 1972.)
The Customs Laboratory Report concluded that the sample of the merchandise was not in the form of powder, granules or flakes and was not ground or pulverized. The description of the sample in the laboratory report and as evidenced by the photostatic copy of the glass as part of the report, clearly demonstrates that the sample was not in “granular” or ground or pulverized form. Also, if we conclude that the term “granular’ equates with the term “ground or pulverized”, the glass article is not in granular form as defined in the dictionary.
A decision in this matter rests on a question of fact rather than a question of law and based on the facts, we conclude that the entries were properly liquidated.
The protestant cites New York Ruling Letter 898704 (NYRL) dated August 23, 1994, in which, glass frit was classified in subheading 3207.40.10, HTSUS, in the form of powder, granules or flake, ground or pulverized. However, that conclusion, as implied in the ruling, was the result of a Customs Laboratory Report. Obviously, unlike the current case, the glass which was the subject of NYRL 898704 was found to be ground or pulverized.
HOLDING:
The glass product as described above, that is not ground or pulverized, is classified under the provision for other glass frit and other glass not ground or pulverized, in subheading 3207.40.50, HTSUS.
You are directed to deny the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto.
Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels.
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Sincerely,
John Durant, Director
Commercial Rulings Division
Office of Regulations and Rulings