CLA-2 RR:CTF:TCM 968221 HkP
Port Director
Port of Chicago
U.S. Customs and Border Protection
610 South Canal Street
Chicago, IL 60607
RE: Clearwater Investment, Ltd., d/b/a Dacra Glass Inc. – Request for Internal
Advice 06/010
Dear Port Director:
This ruling is in response to a request for Internal Advice initiated by counsel on behalf of their client, Clearwater Investment, Ltd., d/b/a Dacra Glass Inc. At issue is the proper classification of several sizes and shapes of colored and uncolored silvered sheet glass with beveled edges, classified at the time of entry in subheading 7009.91.1000, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for unframed glass mirrors. Counsel states that in at least one previously completed transaction, your port classified at least one of these articles under heading 7013, HTSUS, as decorative glassware. The request for Internal Advice is sought based on the importer’s disagreement with CBP’s classification. Counsel asserts that the proper classification of the subject articles is in heading 7009, HTSUS. Samples of the articles under consideration have been submitted with this request.
FACTS:
The subject articles are unframed, metal coated/silvered glass pieces with beveled edges, identified by shape and color as:
(1) Square (2 ½” x 2 ½”)
item no. 110-102-02 (Blue)
item no. 110-102-03 (Smoke)
item no. 110-102-04 (Clear)
(2) Rectangle (2 ½” x 3 ½”)
item no. 110-101-02 (Blue)
item no. 110-101-04 (Clear)
item no. 110-101-05 (Amber/Gold)
(3) Slimline (2 ½” x 6”)
item no. 110-103-02 (Blue)
item no. 110-103-03 (Smoke)
(4) Clock (4 ½” x 7 ½”)
item no. 110-110-07 (Clear)
(5) Cathedral (3 ¾” x 6”)
item no. 110-104-03 (Smoke)
item no. 110-104-04 (Amber/Gold)
As imported the articles contain no writings, illustrations, or other inscriptions, nor are they adorned in any manner. One of the subject articles is imported with a single hole in it and is shaped like an arched door. Counsel informs us that it is designated a “clock mirror” because it will be incorporated into a functioning clock. After importation the other articles will be further worked and/or incorporated into glass “greeting cards” and other gift items. All the articles will be printed with verse and various degrees of decoration. Thereafter a barcode will be applied, easel attached by glue, and other various steps will be taken in order to prepare the item for retail sale.
Your port contends that the subject articles are properly classified in subheading 7013.99.5000, HTSUS, as decorative glassware, because the articles are not glass mirrors for purposes of heading 7009, HTSUS.
ISSUE:
Whether the subject silvered glass articles are properly classified in heading 7006, HTSUS, which provides for worked glass of heading 7003, 7004 or 7005 that is not framed or fitted with other materials, or, in heading 7009, HTSUS, which provides for glass mirrors, or, in heading 7013, HTSUS, which provides for, among other things, decorative glassware.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 2 through 6 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 …..
7006.00.4010 Having an absorbent or reflecting layer …..
7009 Glass mirrors, whether or not framed, including rear-view mirrors:
* * *
Other:
7009.91 Unframed:
7009.91.1000 Not over 929 cm2 in reflecting area …..
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:
* * *
7013.99.5000 Valued over $0.30 but not over $3 each ….
Legal Note 2 to Chapter 70, HTSUS, provides, in pertinent part:
For the purposes of heading 7003, 7004, and 7005:
* * *
(c) The expression “absorbent, reflecting or non-reflecting layer” means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infrared light; or which improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass.
The Harmonized Commodity Description and Coding System
Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
We first address the Port’s contention that the articles are classified in heading 7013, HTSUS, which provides for glassware of a kind used for decoration. We note that EN 70.13, provides, in pertinent part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
* * *
(4) Glassware for indoor decoration and other glassware … such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table-centres … aquaria, incense burners, etc., and souvenirs bearing views.
These articles may be e.g., of ordinary glass, lead crystal, glass having a low coefficient of expansion … or of glass ceramics … They may also be colourless, coloured or of flashed glass, … or of plated glass. …
On the other hand, this heading covers decorative articles which are in the form of mirrors, but cannot be used as mirrors due to the presence of printed illustrations; otherwise they are classified in heading 70.09.
(Original emphases.)
Counsel argues that the subject articles are not “glassware” of heading 7013, HTSUS, because they are not similar to the exemplars of EN 70.13, either by process of manufacture or physical description. We agree. The types of articles of glassware described in the ENs are obtained by pressing or blowing into molds and include table or kitchen glassware, toilet articles, office glassware, and glassware for indoor decoration. Based on the physical characteristics of the articles and information provided by counsel, we do not consider the subject glass articles, in and of themselves, to be used for decoration. Furthermore, EN 70.13 explains that only decorative articles in the form of mirrors that cannot be used as mirrors due to the presence of printed illustrations are classified in heading 7013, HTSUS; otherwise they are classified in heading 7009, HTSUS. The subject articles bear no printed illustrations and can be used as mirrors. Accordingly, we find that the subject articles are not provided for in heading 7013, HTSUS.
Counsel argues that the subject articles are unframed mirrors, classifiable under heading 7009, HTSUS, which provides for glass mirrors, because they are metal coated pieces of glass that have smooth surfaces that form images by reflecting light. EN 70.09 explains that glass mirrors of heading 7009, HTSUS, are “glass, one surface of which has been coated with metal (usually silver, sometimes platinum or aluminum) to give a clear and brilliant reflection.” In his letter to this office (Office of Regulations and Rulings (“OR&R”)) of May 19, 2006, counsel describes the glass coloring and mirroring process of the subject articles, explaining that:
[T]he glass is colored in the glass furnace, i.e., it is part of the formula used to produce the glass. For example, to make blue glass, cobalt is added into the formula. To make amber (gold), sulphur is added. The mirror backing (metal) is applied to the glass in a separate process after the glass is sheeted. Since all mirrors are produced in this way (i.e., by first sheeting glass, followed by the addition of metal mirror backing), the subject articles are indistinguishable from typical reflective glass mirrors in terms of manufacture and design.
Further, counsel argues that none of the exclusions of EN 70.09 apply to the subject articles because they have not been converted into other articles by the addition of extra parts and do not contain printed illustrations that would preclude their use as mirrors.
CBP has previously classified articles comparable to those under consideration in heading 7006, HTSUS, which provides for worked glass of headings 7003, 7004, or 7005, HTSUS, that is neither framed nor fitted with other materials. EN 70.06 explains, in pertinent part, that:
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, subject to their being neither framed, backed, nor fitted with material other than glass. The heading thus includes, inter alia, fingerplates (for doors or switches) made entirely of bevelled or perforated glass and sign-plates, even when bevelled, coloured or bearing designs or other decorations. (Original emphasis.)
Specifically, in Headquarters Ruling Letter (“HQ”) 087015 (Oct. 3, 1990), we classified mirrored glass switchplates, measuring approximately 4 ½ x 2 ¾ “ and described as having a thin chemical coating on the back, in heading 7006, HTSUS. However, the articles of HQ 087015 are distinguishable from the subject articles, in that, the subject articles are coated on one side with metal and not chemicals. Further, we note that HQ 087015 may be inconsistent with CBP’s current view on the classification of mirrored glass and may be subject to modification or revocation. In HQ 958837, dated June 18, 1996, we classified mirrored glass decorative appliqués of various shapes, measuring between 4 and 6 inches long and 2 and 4 inches wide, in heading 7006, HTSUS. The mirrored glass was correctly excluded from classification in heading 7009, HTSUS, because it was described as being decorated over the entire surface and having low reflective properties. However, we note that HQ 958837 may be inconsistent with CBP’s current view on the classification of mirrored glass and may be subject to modification.
Legal Note 2(c) to Chapter 70, HTSUS, for the purposes of headings 7003, 7004, and 7005, HTSUS, defines a reflecting layer of glass as “a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) … which improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency” (emphasis added). Glass of headings 7003, 7004, and 7005, is classified in heading 7006, HTSUS, if it is further worked, but not fitted or framed with other material. On the other hand, EN 70.09 explains that “glass mirrors” of heading 7009, HTSUS, are coated with metal to give a clear and brilliant reflection. Based on the foregoing, it is our current view that mirrored glass without any degree of transparency or translucency is precluded from classification in headings 7003, 7004, 7005, or 7006, HTSUS.
Nonetheless, we note that glass coated with silver (or other metal) (“silvered glass”) and without any degree of transparency or translucency is not always considered a mirror of heading 7009 under the HTSUS. See heading 7016, HTSUS, which provides for, inter alia, “glass smallwares”, whether or not on a backing, for decorative purposes, and EN 70.16 which explains that heading 7016, HTSUS, includes:
Mosaic cubes, generally coloured or with one surface gilded, and small glass rectangles and other flat shapes, whether or not silvered, used as a facing material for walls, furniture, etc. These articles remain classified here, whether or not on a paper, paperboard, textile fabric or other backing. (Emphasis added.)
In the instant case, the subject silvered glass articles are not ejusdem generis with the exemplars of EN 70.16 because they are not used as facing material, that is, as “an ornamental or protective layer” (Merriam-Webster’s Collegiate Dictionary, 10th ed.) for a larger object. Furthermore, the articles of heading 7016 are chiefly used for construction purposes and architectural decoration. Consequently, the subject articles are not provided for in heading 7016, HTSUS. See also EN 70.09, which provides, in relevant part:
This heading also covers mirrors, whether or not framed, bearing printed illustrations on one surface, provided they retain the essential character of mirrors. However, once the printing is such as to preclude use as a mirror, these goods are classifiable in heading 70.13 as decorative articles of glass. (Original emphasis.)
However, for the reasons stated earlier, the subject glass mirrors are not classifiable in heading 7013, HTSUS.
Based on the foregoing, we find that the subject articles are unframed glass mirrors of heading 7009, HTSUS. EN 70.09 specifically states that mirrors in sheets, whether or not further worked (for example, drilled), and shaped mirrors of any size, are covered by heading 7009, HTSUS. Significantly, there is no requirement that mirrors be clear, that is, not be colored. Moreover, we note that colored mirrors are recognized by the industry. See Glass Association of North America, Mirror Division website, www.mirrorlink.org.
HOLDING:
By application of GRI 1, we find that the subject glass mirrors are provided for in heading 7009, HTSUS, specifically in subheading 7009.91.1000, which provides for: “Glass mirrors, whether or not framed, including rear-view mirrors: Other: Unframed: Not over 929 cm2 in reflecting area.” The general 2006 column one rate of duty is 7.8% ad valorem.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Regulations and Rulings 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