CLA-2 OT:RR:CTF:TCM H256546
Port Director of Los Angeles/Long Beach
U.S. Customs and Border Protection
301 East Ocean Boulevard, Suite 1400
Long Beach, CA 90802
RE: Internal Advice; Classification of fireglass
Dear Port Director:
This is in response to a June 25, 2014 request by the Port of Los Angeles/Long Beach (“the Port”) seeking internal advice from our office as to the proper classification of an article referred to as “fireglass” under the Harmonized Tariff Schedule of the United States (HTSUS).
This merchandise was entered in the Port of Los Angeles classified in 7001.00.2000, HTSUS. The importer then submitted a post-entry amendment requesting a change in classification to 7001.00.5000, HTSUS. After laboratory analysis of a sample, the Port liquidated this merchandise under 7020.00.6000, HTSUS. The importer submitted protest 2704-14-100855 for this merchandise, but did not request further review of said protest. The Port subsequently submitted an Internal Advice request asking for clarification on the classification of this merchandise.
FACTS:
The merchandise consists of “fireglass,” used in fireplaces. Fireglass is manufactured from glass sheets that are deliberately broken into pieces. Fire on Glass’s online FAQs, found at http://www.fireonglass.com/frequently-asked-questions, describes the manufacturing process as follows:
The glass is broken without the tumbling processes that other manufacturers use to remove the sharp edges where they scratch and scuff the glass. Our processes make our glass the most brilliant glass in the industry. It is then filtered and cleaned to remove any small debris during the manufacturing process. Our glass is not tumbled in any way, and this is why it is so brilliant and not scratched.
The fireglass is then packaged and sold in 10 pound bags. The importer notes in correspondence with the Port dated March 13, 2013 that the fireglass is used as an alternative to gas logs in fireplaces and fire pits. The online FAQs go on to describe in detail the function and advantages of the fireglass:
The glass uses less gas and gives off MUCH more heat. The glass gets hot and reflects the heat back into the room, you are not just getting the heat from the flame. The same holds true for Fire Pits. Tired of sitting around the fire pit and huddling close? Switch out that lava rock to glass and you will feel the difference! Sit back and enjoy the warmth in the area. You will not be disappointed. With Lava Rock, you get ALL your heat from the flame alone which the majority of the heat goes straight up and does nobody any good at all. Plus there is no comparison at all to burning fire wood. Soot is horrible and messy and can ruin your carpet, plus popping and flying embers can ruin your carpet. No popping or flying objects with the glass, and just turn the gas on and light it, and turn it off when you are finished.
ISSUE:
Whether the fireglass at issue is properly classified in 7001, HTSUS, as cullet and other waste and scrap of glass, in 7016, HTSUS, as glass cubes and other glass smallwares, whether or not on a backing, for mosaics or similar decorative purposes, or in 7020, HTSUS, as other articles of glass.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUSA. 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 which 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied 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 GRIs 1 through 5. AUSRI 1(a) provides that 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.
The 2016 HTSUS provisions under consideration in the instant case are as follows:
7001 Cullet and other waste and scrap of glass; glass in the mass:
Glass in the mass
7001.00.10 Of fused quartz or other fused silica
7001.00.20 Other
7016 Paving blocks, slabs, bricks, squares, tiles and other articles of pressed or molded glass, whether or not wired, of a kind used for building or construction purposes; glass cubes and other glass smallwares, whether or not on a backing, for mosaics or similar decorative purposes; leaded glass windows and the like; multicellular or foam glass in blocks, panels, plates, shells or similar forms
7016.10.00 Glass cubes and other glass smallwares, whether or not on a backing, for mosaics or similar decorative purposes
7020 Other articles of glass
7020.00.30 Quartz reactor tubes and holders designed for insertion into diffusion and oxidation furnaces for production of semiconductor wafers
7020.00.40 Glass inners for vacuum flasks or for other vacuum vessels
7020.00.60 Other
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In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 70.16, HS, states, in pertinent part, as follows:
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. The heading also includes small coloured glass fragments or chippings, usually of opal glass, which are inlaid in cement to produce ornamental designs on the façades of buildings.
* * * * *
As an initial matter, it is undisputed that the subject fireglass is classified in Chapter 70, HTSUS. At issue is whether they are classified at the 4-digit level in heading 7001, HTSUS, 7016, HTSUS, or in 7020, HTSUS. We will initially consider whether the instant fireglass is prima facie classifiable in subheading 7001, HTSUS.
Heading 7001, HTSUS, provides in pertinent part for cullet and other waste or scrap of glass. EN 70.01 notes that “This heading covers…Waste and scrap glass of all kinds arising from the manufacture of glass…also broken articles. Waste glass is generally characterized by its sharp edges.”
The instant fireglass is not cullet, that is, broken or refuse pieces of glass, or the waste and scrap left over from the manufacturing of other glass articles; rather, it consists of glass pieces formed by deliberately and methodically breaking a sheet of glass. In addition, laboratory analysis determined that “The sample appears to be clean, of uniform color and no evidence of powder particles and shards was observed…There is no indication from the information provided that the glass sheets are waste and scrap.”
The instant fireglass is also not a “broken article;” it is a finished product in its own right. The fireglass is designed for use in fireplaces and fire pits. That the glass was not tumbled was a deliberate choice, as described in Fire On Glass’s online FAQs above.
CBP has previously addressed the classification of manufactured glass pieces and has concluded that such merchandise falls outside the scope of heading 7001, HTSUS. For example, in ruling letter NY N028802, dated June 13, 2008, CBP discussed the classification of glass pieces comprised of colored glass slabs which had been deliberately crushed, tumbled to remove the sharp edges, and then used in landscaping for a decorative effect. The requestor in that ruling also suggested classification in 7001 as glass waste and scrap; however, the ruling noted, “These colored glass pieces are not cullet or other waste and scrap of glass…they are glass smallwares designed with a clear purpose in mind – to be applied in landscaping for a decorative effect…Heading 7001 is not applicable.”
As noted above, the fireglass has, at a minimum, been carefully sifted to remove potentially injurious shards and glass dust, as noted by both the importer and the CBP laboratory. Handling of the submitted sample confirms that the product does not appear to contain any sharp edges which might cause injury. That the glass is not tumbled does not confer classification in 7001, HTSUS. In addition, the fireglass is designed with a clear purpose in mind, namely for use in fireplaces and fire pits. The fireglass does not meet the terms of the 7001, HTSUS heading.
Heading 7016, HTSUS, provides for, in pertinent part, glass cubes and other glass smallwares, whether or not on a backing, for mosaics or similar decorative purposes. The fireglass is unlike the exemplars listed in the ENs to heading 70.16, HS. It is not mosaic cubes or small flat shapes used as a facing material, nor is it inlaid in cement to produce ornamental designs on the façades of buildings. Instead, it is designed and sold specifically for use in fireplaces and fire pits.
Moreover, although NY N028802 classified colored glass pieces in 7016, HTSUS, this determination is not transferable to the fireglass. The glass pieces of N028802 were purely decorative and designed to be used in landscaping; and while it may also add to the attractiveness of a fireplace or fire pit, the fireglass is a product made to fulfill a very specific function—reflecting and directing heat so that a burning flame is more efficient and effective, requiring less fuel to throw more heat further. The fireglass is a functional, not decorative, article. It does not meet the terms of the 7016, HTSUS heading.
The last heading under consideration, 7020, HTSUS, is a residual basket provision encompassing all “other articles of glass” which is used only when an item is not properly classifiable under some other heading. See Pomeroy Collection, Inc. v. United States, 26 C.I.T. 624, 631 (2002). As the fireglass is not more specifically provided for elsewhere in Chapter 70, HTSUS, 7020, HTSUS is the most appropriate heading.
HOLDING:
By application of GRI 1, the subject fireglass is classifiable under heading 7020, HTSUS, and specifically provided for in subheading 7020.00.60, HTSUS, which provides for “Other articles of glass: Other.” The column one, general rate of duty for 7020.00.60, HTSUS is 5 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
Sixty days from the date of this decision, the Office of International Trade, Regulations and Rulings, will make this decision available for CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division