CLA-2 RR:CR:GC 965416 AML
Port Director
U.S. Customs Service
2350 N. Sam Houston Parkway
Houston, Texas 77032
RE: Protest 5301-01-100313; Glass Frit
Dear Port Director:
This is in response to protest 5301-01-100313, filed by counsel on behalf of Dal-Tile Corporation, against your tariff classification of “Colorobbia 800/469” and “Colorobbia 0803/0839”, substances claimed to be glaze compound products, under the Harmonized Tariff Schedule of the United States (HTSUS). Pictorial representations, an affidavit describing the constituent materials and use of the substances, and an independent laboratory analysis were submitted for our examination. Consideration was given to the presentation of counsel for the protestant in a telephone conference with representatives of this office on July 22, 2002.
FACTS:
“Colorobbia 800/469” and “Colorobbia 0803/0839” are described as glaze compound products that consist of two ingredients: frit and kaolin. Based upon its own laboratory reports, counsel for the protestant alleges that both the frit and the kaolin exhibit crystalline structures, and while the frit exhibits amorphous areas, neither of the constituent ingredients can be considered to be glass. Counsel further alleges that each of the Colorobbia products is a “premix of ingredients which constitute a specific glaze with specific characteristics meeting the design requirements for specific ceramic tile.” Following importation, the substances must be “charged” into a ball mill where they will be ground and mixed with glue (carboxylmethyl cellulose), and a phosphate defloculant. These additives facilitate the mixing and grinding and control rheology (viscosity).
Counsel further argues the following:
The two ingredients of the glaze compound play a critical role in applying the glaze. The frit imparts fusibility. It contains calcium and zinc in some form, which combine to form a eutectic. Calcium and zinc are crystalline in structure, and combine to form a unique crystal solid. The purpose of the eutectic is to retard the viscosity of the frit during firing. It achieves this result by halting any increase in viscosity, until, during firing, the eutectic reaches its own predesigned melting point. When it reaches this point the frit liquefies.
The kaolin, which is a special top quality kaolin mixed in France and known as “Kaolin d’Arvor,” imparts plasticity to the glaze and acts as a suspension agent permitting an even distribution of various elements throughout the glaze. It also participates in the chemistry of the glaze by introducing silica aluminate. The combination of the two impart permeability, scratch resistance, abrasion resistance, brilliancy and textural features.
The glaze compounds in issue are products which have no use other than as glazes. As imported, they are glazes requiring only grinding and the addition of various ingredients which are minor in volume and cost in order to be ready for use in the manufacture of glazed tile.
The Customs Laboratory analyzed samples of “Colorobbia 800/469” and “Colorobbia 0803/0839”. Customs Laboratory Report No. NO200000235S, dated June 21, 2001, which analyzed “TM2 – PIGMT – C-800/469 GLAZE COMPOUND” (what we assume to be Colorobbia 800/469), describes a sample of the merchandise as being “in the form of small opaque particles and yellow powder” and consisting of “a mixture of glass frit and other products, which include kaolin.” The report contains the following observations:
The sample contains, by weight, as received, approximately 99% glass frit and 1% inorganic material including kaolin. The glass frit has the following sieve characteristics:
Percent by weight
Retained on 5 mesh sieve/w 4.00 mm opening --- 52.7
Retained on 18 mesh sieve/w 1.00 mm opening --- 45.6
Retained on 35 mesh sieve/w 0.50 mm opening --- 1.3
Retained on 70 mesh sieve/w 0.212 mm opening --- 0.3
Retained on 200 mesh sieve/w 0.075 mm opening --- 0.1
Passed on 200 mesh sieve/w 0.075 mm opening --- 0
The report concluded that the sample is not ground or pulverized.
Customs Laboratory Report No. NO200000236S, dated June 21, 2001, which analyzed “TM2 – PIGMT – C-0803/0839” (what we assume to be Colorobbia
0803/0839), describes a sample of the merchandise as being “in the form of small opaque particles and yellow powder” and consisting of “a mixture of glass frit and other products, which include kaolin.” The report contains the following observations:
The sample contains, by weight, as received, approximately 95% glass frit and 5% inorganic material including kaolin. The glass frit has the following sieve characteristics:
Percent by weight
Retained on 5 mesh sieve/w 4.00 mm opening --- 27.3
Retained on 18 mesh sieve/w 1.00 mm opening --- 70.2
Retained on 35 mesh sieve/w 0.50 mm opening --- 1.3
Retained on 70 mesh sieve/w 0.212 mm opening --- 0.8
Retained on 200 mesh sieve/w 0.075 mm opening --- 0.4
Passed on 200 mesh sieve/w 0.075 mm opening --- 0
The report concluded that the sample is not ground or pulverized.
The articles were entered on October 15, 2000, and the entries were liquidated on August 24, 2001, with classification upon liquidation under subheading 3207.40.50, HTSUS, which provides for glass frit. The protest was filed on October 22, 2001.
ISSUE:
Whether the substances are classified under subheading 3207.20.00, HTSUS, which provides for prepared pigments, prepared opacifiers and prepared colors, vitrifiable enamels and glazes, engobes (slips), liquid lustres and similar preparations, of a kind used in the ceramic, enamelling or glass industry; glass frit and other glass, in the form of powder, granules or flakes: vitrifiable enamels and glazes, engobes (slips) and similar preparations; or under subheading 3207.40.50, HTSUS, which provides for glass frit and other glass, in the form of powder, granules or flakes: other?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. §1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of
the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. Further, only those subheadings at the same level of indentation are comparable.
The HTSUS provisions under consideration are as follows:
2507.00.00 Kaolin and other kaolinic clays, whether or not calcined.
* * *
3207 Prepared pigments, prepared opacifiers and prepared colors, vitrifiable enamels and glazes, engobes (slips), liquid lustres and similar preparations, of a kind used in the ceramic, enamelling or glass industry; glass frit and other glass, in the form of powder, granules or flakes:
3207.20.00 Vitrifiable enamels and glazes, engobes (slips) and similar preparations:
3207.40 Glass frit and other glass, in the form of powder, granules or flakes:
3207.40.10 Ground or pulverized.
3207.40.50 Other.
The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).
Heading 3207, HTSUS, provides in the first “part”, i.e., the language preceding the semicolon in the superior heading, for substances “of a kind used” in the ceramic, enamelling or glass industry, and as applicable to the merchandise under consideration, is controlled by use (other than actual use) (see Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993); E.M. Chemicals v. United States, 923 F. Supp. 202 (CIT 1996); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20, 25, 748 F.2d 663 (1984)). If an article is classifiable according to the use of the class or kind of goods to which it belongs, as is true of this provision, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:
In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
In other words, the article's principal use in the United States at the time of importation determines whether it is classifiable within a particular class or kind (principal use is distinguished from actual use; a tariff classification controlled by the latter is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered (U.S. Additional Note 1(b); 19 C.F.R. §§10.131 - 10.139); as stated above, the competing provisions are principal use provisions, not actual use provisions).
The “second” part of the superior heading of 3207, HTSUS, i.e., the clause following the semicolon in the superior heading, provides eo nomine for glass frit and other glass in the form of powder, granules or flakes.
Heading 3207.20, HTSUS, at the six-digit level, provides for vitrifiable enamels and glazes, engobes (slips) and similar preparations. 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, and subheading 3207.40.50, HTSUS, provides for other glass that is not ground or pulverized.
An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). The substances at issue are, upon importation, predominantly composed of glass frit (see the Customs Laboratory reports above). While the evidence presented demonstrates that the substances will be used as glazing compounds following importation, the evidence also establishes that the substances must be further worked (i.e., ground and mixed with at least two other substances) in order to be so utilized (see the definition of the term of art “further worked” as interpreted by United States Court of International Trade in Winter-Wolff, Inc., v. United States, 996 F. Supp.1258, 1264 (1998). There, the CIT determined, based upon common meaning gleaned from dictionary definitions, that the definition of “further worked”, for purposes of classification within the HTSUS, “amounts to the following: to form, fashion, or shape an existing product to a greater extent.” Id.).
The Customs Laboratory Reports concluded that the samples of the merchandise were neither in the form of powder nor ground or pulverized. This fact is conceded by counsel in its description of the further working that must be undertaken with the substances prior to their use – the substances are ground into a powder (“charged in a ball mill”) and mixed with the two additional substances as described above. The description of the sample in the laboratory report and as evidenced by the photostatic copy of the substances as part of the report, clearly demonstrates that the sample was not “powdered” or in ground or pulverized form. Both reports of the Customs Laboratory refer to the substances are being composed predominantly of glass frit.
In cases such as this, where a party submits an outside report that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820-002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently classify products according their make up, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports that may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.
Notwithstanding the conclusions of the Customs Laboratory that the mixtures are predominantly composed of glass frit, the substances are prima facie classifiable under two headings of the Tariff: 2507, HTSUS, which provides for kaolin and 3207, HTSUS, which provides at the six-digit level for glass frit. Thus, the substances are classifiable at GRI 1 only at the level of the superior heading. By way of GRI 6 (see above), we apply the remaining GRI to determine classification within heading 3207.
GRI 2(b) provides in pertinent part that “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.”
GRI 3 provides, in pertinent part, as follows:
3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
As regards the essential character of the goods, we note several decisions by the Court of International Trade (CIT) which addressed “essential character” for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. The Court examined the role of the constituent materials in relation to the use of the goods and found that, although the relative value of the textile curtain was greater than that of the plastic liner, and that although the textile curtain also served protective, privacy and decorative functions, because of the fact that the plastic liner served the indispensable function of keeping water inside the shower, the plastic liner imparted the essential character upon the set. See also Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co. v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995), in which the Court also looked to the role of the constituent material in relation to the use of the goods to determine essential character.
The ENs to heading 3207, HTSUS, at page 600, provide in pertinent part, as follows:
This heading covers a range of preparations used in the ceramic industry (china, earthenware, etc.), in the glass industry or for colouring or finishing metal articles.
* * *
(2) Vitrifiable enamels and glazes are mixtures of silica with other products (felspar, kaolin, alkalies, sodium carbonate, alkaline-earth metal compounds, lead oxide, boric acid, etc.) giving a smooth surface, either matt or glossy, by vitrification under heat. In most cases some of the constituents have been fused together in a preliminary process and are present in the mixture in the form of powdered frit (see below).
They may be transparent (whether or not coloured) or rendered opaque by the addition of opacifiers or pigments; sometimes substances (e.g., titanium or zinc oxides) are added which produce decorative crystalline effects on cooling after the firing. These vitrifiable enamels and glazes are generally in the form of powders or granules.
* * *
(5) Glass frit and all other varieties of glass (including vitrite and glass obtained from fused quartz or other fused silica) in the form of powder, granules or flakes, whether or not coloured or silvered.
These products are used in the preparation of coatings for ceramic, glass or metal articles as well as for other purposes. For example, frit is used in the preparation of the vitrifiable products referred to in paragraph (2) above. Glass powder and granules are sometimes sintered to form discs, plates, tubes, etc. for laboratory use [bold in original].
Counsel argues at length that the substances, specifically the glass frit, cannot, because of the crystalline structures present, constitute glass. We disagree with counsel’s conclusions for two reasons: first, neither the Customs Laboratory nor the independent lab analysis provided by protestant differentiate or identify which constituent in the mixtures imparts crystallinity. We are cognizant that the frit predominates at levels of 95 and 99% in both samples; however, the effect of the mixtures upon physical and molecular structure has not been identified. Second, heading 3207 contemplates substances other than glass: we do not consider classification under Chapter 70 (which provides for articles of glass) because Note 1 to Chapter 70 excludes "goods of heading 3207 (for example, vitrifiable enamels and glazes, glass frit, other glass in the form of powder, granules or flakes).” Likewise, the ENs to heading 3207 provide at page 601 that:
When the products referred to in paragraph (5) above are in forms other than powder, granules or flakes, they are excluded, and generally fall in Chapter 70. This applies in particular to “vitrite” and “enamel” glass in the mass (heading 70.01), to “enamel” glass put up in the form of bars, rods or tubes (heading 70.02) and to small regular spherical grains (microspheres) used for coating cinematograph screens, road signs, etc. (heading 70.18).
The substances at issue are presented in granular form. They are not powdered; counsel tacitly so concedes when it describes the further working of the substance to include being powdered and charged in a ball mill. Counsel further concedes that the glass frit is the constituent material that gives the finished articles (tiles) their glossy appearance. Given the fact that the glass frit constitutes 95 and 99% of the mixtures upon importation, we find that the essential character of the mixed substances is imparted by the glass frit.
We note that all glass frit functions in basically the same manner as glazes. If all glass frit which functions in this manner were classified under subheading 3207.20.00, HTSUS, virtually no goods would fall to be classified as glass frit under subheading 3207.40.50, HTSUS. Such a conclusion is obviously illogical and cannot have been the intent of the drafters of the tariff schedule.
Thus, in consideration of the conclusions reached by the Customs Laboratory, by application of GRI 3(b) (see above), and given the fact that the substances must be further worked following importation and prior to being capable of being used as a glazing compound, the substances are classifiable under subheading 3207.40.50, HTSUS, as glass frit. See HQ 962732, dated October 8, 1999, in which we made a similar determination.
HOLDING:
The substances described above, “Colorobbia 800/469” and “Colorobbia 0803/0839”, are classified under the provision for other glass frit and other glass not ground or pulverized, under subheading 3207.40.50, HTSUS.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, you are to mail this decision, together with the Customs Form 19, to the
protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the 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 methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division