CLA-2 RR:CR:TE 966495 TMF
Customs and Border Protection
4915 South Howell Avenue, Suite 200
Milwaukee, WI 53237
RE: Decision on Application for Further Review of Protest No. 3701-03-100025
Classification of Dinnerware; Customs Laboratory Results; Presumption of Correctness
Dear Port Director:
This is a decision on an Application for Further Review (AFR) of a protest timely filed on November 17, 2003, by Barnes, Richardson and Colburn, LLP, on behalf of their client, Hy Cite Corporation. The protest concerns the classification and liquidation of an entry of two styles of dinnerware on August 22, 2003.
The transaction in question involves an entry for consumption of certain dinnerware manufactured by Arc International in Arques, France and imported by Hy Cite Corporation. The entry at issue contains two dinnerware patterns, identified as Trianon Florine Maderia (hereinafter referred to as “Florine”) and Direct Vesuve Cortina (hereinafter referred to as “Vesuve”), which are the subjects of the instant protest. The entry also contains a plate dinnerware pattern, referred to as Marine, which is not the subject of this protest. The merchandise was entered on May 28, 2003.
The instant protest is against Customs and Border Protection’s (CBP) classification and liquidation of the Florine and Vesuve within the entry on August 22, 2003 in subheadings 7013.29.2000, HTSUSA, which provides for “Glassware of a kind used for the table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Drinking glasses, other than of glass-ceramics…Valued over $0.30 but not over $3 each;” subheading 7013.39.2000, HTSUSA, which provides for “Glassware of a kind used for the table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)…Valued not over $3 each;” and subheading 7013.39.5000, HTSUSA, which provides for “Glassware of a kind used for the table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018) …Valued over $3, but not over $5 each.”
CBP’s classification of the subject merchandise is based on the results of tests conducted by the Office of Laboratory and Scientific Services. The CBP laboratory tests results, which are the subject of the instant protest, are found in Laboratory Reports CH20030893 and CH20030894, both dated July 31, 2003; and in supplemental laboratory Report CH0112205001, dated January 12, 2005.
Counsel for the protestant asserts that the subject merchandise is classifiable in subheadings 7013.29.0500, HTSUSA, which provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes…pressed and toughened (specially tempered)”; and subheading 7013.39.1000, HTSUSA, which provides for “glassware of a kind used for table (other than drinking glasses)…pressed and toughened (specially tempered),” respectively.
On November 11, 2004, members of my staff met with the protestant and their counsel to discuss this case.
Whether there is sufficient evidence to overcome the determination by the CBP Laboratory that two styles of opaque glass plate and mug dinnerware are not pressed and toughened (tempered) as provided within subheadings 7013.39.1000 and 7013.29.0500, HTSUSA?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
Initially, we note that the protest was timely filed 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)).
Treasury Decision 94-26 (94-26), 28 Customs Bulletin 13, March 30, 1994; 59 Fed. Reg. 13531 sets forth CBP laboratory protocols for testing certain glass articles to determine whether they are specially tempered. These protocols are summarized as follows:
1. Visual Examination: When testing to determine whether a product is pressed and toughened (specially tempered), the laboratory analyst initially does a visual examination. The presence of mold marks, ribs, handles or flutes in a glass article often indicate that an article has been “pressed.” The absence of these characteristics makes it much less likely that the item has been pressed.
2. Dimensional Measurement: The analyst then measures the minimum diameter of the mouth, opening or upper rim of the sample and maximum inside diameter. This is known as the dimensional test. A sample that has a maximum inside diameter greater than the minimum diameter of the mount, opening or upper rim is not likely to have been “pressed.” If the dimensional test indicates the sample is not pressed, additional tests are not necessary. However, if the dimensional test does not negate the possibility that the article has been pressed, the analyst should perform the following additional tests.
3. Thermal Shock Test: The sample is heated in an oven at a temperature of 160 degrees Centigrade for thirty minutes. Afterwards the sample is removed and immersed in a water bath set at a temperature of 135 degrees. If the sample breaks in response to this thermal shock test, this would indicate that the product had not been toughened and the analyst need not perform any other tests. However, if the sample doesn’t break when subjected to the thermal shock test, the following additional tests should be performed.
4. Polariscopic Examination: The glass article is subjected to polariscopic examination. If a pattern of colors forms in response to polarized light, this would be evidence that the product is specially tempered. On the other hand, if the sample exhibits uniform coloration in response to the polarized light, this would indicate that the item is not specially tempered. The polarized light test can only be performed on transparent articles and certain translucent items. It cannot be performed on opaque products and those translucent products where there is an inadequate transmission of polarized light. Therefore, for opaque articles and certain translucent items, the cutting test is substituted for the polarized light test.
5. Cutting Test: Under the cutting test, a tile saw or similar table-mounted circular saw is equipped with an 8 to 12 inch diameter continuous rim diamond blade designed for wet cutting glass. When subjected to wet cutting by this saw, a product which is specially tempered will break into pieces; however, if the product is not specially tempered, it will be cleanly cut in half by the saw.
Based on CBP laboratory protocols for the articles at issue, the CBP laboratory performed a series of tests on July 29, 2003 on the Florine mug and Vesuve plate samples that were taken from the entry at issue and determined that the products at issue were not pressed and toughened.
In the instant case, Counsel states that the Florine and Vesuve patterns are made of opaque, fluorosilicate glass, which cannot be examined by polariscope because of the inadequate transmission of polarized light. Counsel refers to T.D. 94-26, supra, which provides that a cutting test is used in lieu of a polariscopic exam for the testing of opaque or translucent glass. During the November 11th conference with members of my staff, Counsel for the protestant stated that the CBP laboratory did not test the Florine mug and the Vesuve plate for fluorosilicate but performed the cutting test on the samples. According to the CBP laboratory, although there was not any testing to determine if the merchandise was fluorosilicate or annealed glass, the outcome would be the same.
In the case of the tests performed on the Florine mug, we note that it passed the thermal shock test but failed the cutting test, since it readily accepted the diamond-rimmed blade and did not break into pieces. Based on these results, the CBP laboratory concluded that the Florine mug was not tempered. In the case of the Vesuve plate, although the sample passed the thermal shock test, it did not break into pieces and the CBP laboratory determined that the sample was not tempered.
As previously stated, Counsel for the protestant disputes the accuracy of the initial CBP lab test results and asserts that the merchandise should be classified in subheadings 7013.29.0500 and 7013.39.1000, HTSUSA, for the goods at issue.
According to Counsel, the initial test results show evidence of tempering because the “photographs do reveal that the article broke into two or more pieces, not that they were cut into two or more pieces” and that this “satisfies the cutting test because it shows that the article cannot be cut cleanly in half, as will annealed glass, but rather, breaks into two or more irregular shaped pieces.” Counsel also asserts that “T.D. 94-26 does not specify any minimum number of pieces, especially for fluorosilicate glass, because the TD [sic T.D.] correctly recognized that fluorosilicate glass does not ‘shatter’ like soda lime glass will.” Further, Counsel contends that “[e]ven though the fluorosilicate articles tested by the…[lab] did not shatter they were also, clearly, not ‘cut cleanly in half.’” Rather, according to counsel, “the articles did in fact, exhibit an irregular breaking pattern, which is characteristic of tempered fluorosilicate glass, and inconsistent with annealed glass.”
Pursuant to 28 U.S.C. § 2639(a)(1) (1994), Customs enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the Customs laboratory is in error, or that the Customs' laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399. In Alcoa, the importer was able to overcome the presumption of correctness afforded Customs by clearly establishing that the samples tested by the importer were taken from the shipment under question as it arrived in the U.S. Moreover, the samples were analyzed by the importer’s own chemists as well as two independent laboratories using the published Customs Lab Method, which was considered reliable by both sides.
In this case, Counsel for the protestant indicated in their submission and during the conference with members of my staff that Arc International retested a number of pieces of the Vesuve and Florine patterns to further reinforce that the articles are in fact tempered. Counsel submits that as both the Florine mug and tempered Vesuve plate passed Arc’s cutting test that was performed in accordance with the T.D., the goods should be classified as tempered glass. Specifically, Counsel states:
Arc specifically prepared a number of the annealed pieces of these dinnerware patterns for the sole purpose of subjecting them to the cutting test and comparing the results for the annealed items to results obtained from subjecting comparable tempered pieces to the cutting test as described in the TD [sic T.D.]. The results of these tests support the conclusion that the Vesuve and Florine items imported under the subject entry meet the criteria for classification as tempered glass.
Counsel also submitted photographs of these repeated tests and states, “these photos clearly show that at some point in the cutting process, the item will break spontaneously into two or more pieces. It is not “cut cleanly in half.” In support of their argument, Counsel offers a statement from Arc’s director of quality control which indicates that the director tested the Vesuve and Florine patterns by cutting with a continuous-rim, diamond blade, which resulted in breakage occurring which never allowed the blade to pass through them cleanly. The director, in his statement, noted that cutting the annealed versions of the two patterns resulted in a clean cut through by the blade. The director also stated that unlike soda lime, which breaks almost immediately, fluorosilicate tempered glass will not break until the blade has cut through part of the article, although the results he obtained varied in the amount of breakage. In conclusion, Counsel for the protestant argues that the “dramatic difference in the annealed Florine and Vesuve cutting test results as contrasted with the tempered Florine and Vesuve results, are compelling proof of tempering.”
We note that during the conference, Counsel indicated that their client, Arc International, was one of the original parties who assisted in the development of the protocol for testing of specially tempered glassware, which is identified in T.D. 94-26, supra. We have considered the arguments that the initial laboratory test results were flawed and we requested further testing of additional samples that were not from the entry at issue but another entry from the Port of Milwaukee.
The second testing samples consisted of five Florine plates marked “tempered” and one identical Florine plate marked “annealed.” The annealed plate was received broken and could not be mechanically tested. However, according to the laboratory report, this breakage pattern is consistent with annealed glass. The other plates passed the thermal shock test. However, the saw test and the traditional center punch test results indicate that the articles are “at best lightly heat-treated.” From these tests, the laboratory concluded the following: (1) that these plates are not toughened (specially tempered) and that (2) the “composition of the glass is consistent with an opal glass based on the addition of fluorides…[and] each plate’s construction is consistent with pressing as a method of manufacture.” Based on the initial test results of the original entry and the results from the second testing of other sample merchandise, we affirm the laboratory’s position that the merchandise at issue is not specially tempered.
We deny the protest based on the following considerations. First, in their offering to provide results contrary to those of the CBP laboratory, the Protestant has failed to establish a prima facie case that the methods used by the CBP laboratory are in error or that the results are erroneous. Even upon retesting of samples outside of the original entry, the results remain the same: the articles are not specially tempered. Second, the outside testing performed by the protestant's Counsel, which differs from the CBP laboratory, does not take precedence in this case. Therefore, although an outside report is submitted which differs from the CBP laboratory report, the CBP laboratory, which tested the two subject patterns on two separate occasions cannot be disregarded. See Headquarters Ruling Letter (HQ) 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992, and stating “Customs cannot rely on outside reports, which may or may not utilize different testing methods and still remain consistent in its tariff classification.”) The merchandise tested by the Protestant’s outside laboratory does not come from the original entry that was imported into the U.S. We must rely on the CBP laboratory analysis of samples from the original entry when determining the proper tariff classification of merchandise. See HQ 957282; see also HQ 958346, dated February 6, 1996.
Accordingly, as both the entry samples and supplemental samples were tested pursuant to correct Customs laboratory protocols outlined in T.D. 94-26 and both sets of samples failed to meet the guidelines outlined therein, the Customs laboratory report takes precedence over the results of the tests administered by the protestant’s private laboratory. Therefore, we conclude that the articles at issue were properly classified within subheading 7013.29.2000, 7013.39.2000 and 7013.39.5000, HTSUSA.
The protest should be DENIED. The Trianon Florine plate and Direct Vesuve mugs remain classified within subheadings 7013.29.2000, 7013.39.2000 and 7013.39.5000, HTSUSA.
Subheading 7013.29.2000, HTSUSA, provides for “Glassware of a kind used for the table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Drinking glasses, other than of glass-ceramics: Other: Other: Valued over $0.30 but not over $3 each.”
Subheading 7013.39.2000, HTSUSA, provides for “Glassware of a kind used for the table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: Other: Other: Valued not over $3 each.”
Subheading 7013.39.5000, HTSUSA, provides for “Glassware of a kind used for the table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: Other: Other: Valued over $3 each: Other: Valued over $3, but not over $5 each.”
The 2003 general, column one rate of duty for goods classified in subheadings 7013.29.2000 and 7013.39.2000 was 23 percent ad valorem for both subheadings and in subheading 7013.39.5000, it was 15 percent ad valorem.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision 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.
Myles Harmon, Director
Commercial Rulings Division