HQ H233584
CLA-2 OT:RR:CTF:TCM H233584 LOR
Port Director
Los Angeles/Long Beach Service Port
U.S. Customs and Border Protection
301 East Ocean Boulevard
Long Beach, CA 90802
ATTN: Import Specialist Team 718
RE: Application for Further Review of Protest No. 2704-12-102632; E6 Glass Chunks;
7001.00.20, HTSUS
Dear Port Director:
This is our decision regarding Application for Further Review (“AFR”) of Protest No. 2704-12-102632. The AFR was filed by importer OHara Corporation (“Protestant”), which contests the classification by U.S. Customs and Border Protection (“CBP”) of certain glass articles in subheading 7001.00.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although samples of the subject merchandise were not submitted for our review, Protestant did provide photographs of the subject articles. The protest was timely filed on July 18, 2012.
FACTS:
The merchandise subject to the protest consisted of one entry on November 30, 2010, described as “132 pcs (1661 kg) – Optical Glass Ingot” under subheading 7001.00.50, HTSUS, as “other than glass in the mass.” Following CBP’s request for information regarding the entered merchandise, Protestant advised that as a part of the production process, raw powder material was mixed and then melted/annealed in a clay pot and that the clay pot and larger cullet chunks were broken down into smaller cullet pieces (approximately 75-100mm cubed) for easier shipping and handling. The entry was liquidated on January 20, 2012, under subheading 7001.00.2000, HTSUSA, as “glass in the mass.”
The photographs submitted by Protestant show what appear to be glass blocks that are roughly equal in height and length. In two of the photographs, the articles were placed against rulers. In one photograph, the measured side of the article is approximately 5” and in a second photograph, the measured side of the article is approximately 6”. The glass blocks appear to be smooth and are not chipped or broken.
ISSUE:
Whether the imported merchandise is classified in subheading 7001.00.20, HTSUS, as “Glass in the mass”, or in subheading 7001.00.50, HTSUS, as “Cullet and other waste and scrap of glass: Other [than glass in the mass]”.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review of Protest No. 2704-12-102632 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to involve matters previously ruled upon in Headquarters Ruling Letter (“HQ”) 086734, dated May 2, 1990. Specifically, Protestant alleges that CBP’s reliance HQ 086734 is misplaced and that two New York Ruling Letters (“NY”), NY A80667, dated March 6, 1996, and NY J81797, dated March 17, 2003, more accurately support the actual characteristics and use of the imported material.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 other require, the remaining GRIs 2 through 6, may then be applied in order. Consistent with GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.
The HTSUS provisions under consideration are as follows:
7001 Cullet and other waste and scrap of glass; glass in the
mass:
Glass in the mass:
7001.00.20 Other [than of fused quartz or other fused silica]. . . .
7001.00.50 Other . . . .
* * * * *
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 7001, HTSUS, provides, in pertinent part, the following guidance:
(A) Waste and scrap of glass of all kinds arising from the manufacture of glass (including glass waste splashed outside the melting pots and subsequently recovered); also broken articles. Waste glass is generally characterised by its sharp edges.
(B) Glass (including “enamel” glass), in the mass (i.e., in more or less regular blocks), with no particular intended use.
* * * * *
It is uncontested that the merchandise, which consists of glass, is properly classified at the six-digit level under subheading 7001.00, HTSUS, as either cullet and other waste and scrap of glass or glass in the mass. What is contested is whether glass that has been melted/annealed and processed into a smooth block form may be classified as cullet or waste under subheading 7001.00.50, HTSUS. Therefore, the discrepancy occurs at the eight digit level necessitating a GRI 6 level analysis.
According to Protestant, the common definition of cullet is “broken glass gathered for remelting”. The term “cullet” is defined in the Oxford English Dictionary (http://www.oed.com/view/Entry/45655?redirectedFrom=cullet#eid, last visited July 7, 2014) as, “Broken or refuse glass with which the crucibles are replenished.”
Based on Protestant’s description of the manufacturing process, the imported merchandise, E6 Borosilicate Low Expansion (“E6”), was formed in part as follows:
Raw powder material is mixed and then remelted/annealed in clay pots using a process that is 75 years old.
The clay pot and larger cullet chunks are broken down into smaller cullet pieces (approximately 75 – 100mm cubed for easier shipment/handling) with a hammer-like tool and/or a flame cutting tool.
Cullet is then inspected, packaged, and shipped.
By protestant’s own statement, the imported glass has been produced then cut into a smooth, block form. Accordingly, the imported merchandise does not meet the definition of cullet as it does not consist of broken glass and it does not have sharp edges. Neither is it waste or scrap as it is not recovered from the manufacture of glass, rather, it is the actual manufactured glass cut into block shapes. The fact that the articles will be re-melted and formed into a new item does not alter the fact that at the time of importation, it is in the form of blocks produced from glass, not broken from it. Lastly, since the merchandise can be described as “glass in the mass” of 7001.00.20, HTSUS, it cannot be described as “Other” than glass in the mass of 7001.00.50, HTSUS. Its form could be used for anything needing glass in the mass.
Protestant cites several rulings in support of its argument for classification in subheading 7001.00.50, HTSUS. In HQ H086736, CBP classified certain glass ingots in subheading 7001.00.20, HTSUS, after finding that the ingots, would be unsuitable for optical use and that they did not consist of fused quartz or other fused silica. On the continuation sheet to CBP Form 19, Protestant admits that the term “ingot” does not describe its merchandise. Therefore, the decision reached in HQ H086736 pertaining to glass ingots is not applicable to the subject merchandise.
Protestant claims that the imported merchandise is more like the goods identified in NY A80667 and NY J81797. Protestant claims that the size of the imported merchandise is relative to the large size of the end product, which will be used in large telescopes, and that the material meets the definition of cullet.
The merchandise in NY A80667 was described as consisting of “chunks or pieces of broken glass in various sizes and shapes, with the largest size approximately 1 inch by 0.5 inches in thickness, and the smallest about the size of a pea”. The merchandise in NY J81797 was described as consisting of “broken pieces of clear glass with sharp edges in various sizes and shapes”. Hence, the decisions reached by CBP in NY A80667 and NY J81797 are inapplicable to the instant merchandise which is approximately 5 to 6 times larger, of a regular block shape, smooth and not broken.
HOLDING:
By application of GRI 1 and GRI 6, the instant glass chunks are classified in heading 7001, HTSUS, specifically under subheading 7001.00.20, HTSUS, which provides for: Cullet and other waste and scrap of glass, glass in the mass: Glass in the mass: Other. As such, the duty rate is 3% ad valorem.
You are instructed to deny the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 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 days from the date of the decision, the Office International Trade, 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