CLA 2 RR:CR:GC 961870 PH
Port Director
U.S. Customs Service
198 West Service Road
Champlain, NY 12919
RE: Protest 0712-97-100897; "Bowl" for stem glassware
Dear Port Director:
This is in response to protest 0712-97-100897, which pertains to the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of glass "bowls" which, after importation, will be combined with stems to form completed drinking glasses. Samples were provided for our examination. We regret the delay.
FACTS:
The merchandise in the protested entry, filed on February 23, 1997, is described in the invoice as a "Touraine Flute Bowl". A sample of the "bowl" consists of the part of a wine-glass shaped article into which liquid is poured, without a stem or base. The "bowl" is approximately 4 1/2" high, 2" wide at the opening, and at approximately the mid-point (top to bottom) its diameter gradually decreases to a rounded end, where the glass is thicker. Because of its rounded, bell-shaped bottom, the "bowl" may not "stand" on its own. After importation, the "bowl" is further processed, by reheating the "bowl" and attaching one of five different stems, to create a stemware glass.
The entry was liquidated on July 11, 1997, with classification of the merchandise as other drinking glasses, in subheading 7013.29.10, HTSUS. On August 18, 1997, counsel for the importer filed this protest.
The protestant states that "[p]rior to the further processing that the imported merchandise undergoes after importation, the bowls are not useable for any purpose ... because they have no base that would give support or stability to the bowl." Citing Riekes Crisa Corp. v. United States, 14 CIT 235 (1990), and Headquarters Ruling (HQ) 953384 dated September 14, 1993, the protestant argues that the merchandise is classifiable as other articles of glass, in subheading 7020.00.00, HTSUS.
ISSUE:
Whether "bowls" to be processed into glass stemware after importation are classifiable as other drinking glasses in subheading 7013.29.10, HTSUS, or other articles of glass in subheading 7020.00.00, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (within 90 days after but not before the notice of liquidation (19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, provides, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. GRI 2(a) provides, in pertinent part, that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.
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).
The 1997 HTSUS subheadings under consideration are as follows:
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)
Drinking glasses, other than of glass-ceramics:
7013.21 Of lead crystal:
* * *
7013.29 Other
7013.29.05 Pressed and toughened (specially tempered)
Other:
7013.29.10 Valued not over $0.30 each.
7020.00.00 Other articles of glass.
The glass bowls, in their condition as imported, cannot be used as drinking glasses because they cannot "stand" on their own (Riekes Crisa, supra, 14 CIT at 249). In Riekes Crisa, the Court held "Yard-of-Ales", slender drinking glasses, almost three feet in height, which after importation were to be placed on a wooden stand and sold as novelty items, to be articles of glass, not specially provided for, in item 548.05, Tariff Schedules of the United States (TSUS), a predecessor provision to subheading 7020.00.00, HTSUS. In coming to this conclusion, the Court stated:
An examination of the imported glass parts of the Yard-of-Ales indicates that they can not be used, and that, except as a replacement, they are unlikely to be purchased, without the wooden stand. Hence, the court agrees with plaintiff’s contention that the glass parts of the Yard-of-Ales are only "parts" of an "article chiefly used in the household," and, therefore have been improperly classified. [14 CIT at 249]
See also, Glass Products, Inc. v. United States, 10 CIT 253, 641 F. Supp. 813 (1986), in which the Court held "closed-bottom candle receptacles of glass ... [with] a lug which projects from its bottom, which enables the cups to be inserted into a candleholder, sconce, or other holder [and which] are neither freestanding nor self-supporting, and are incapable of any practical use in their condition as imported" (10 CIT at 254-255) also to be classified in item 548.05, TSUS. The Court stated "[t]he applicable precedents make clear that a glass article which can be used only as a part of another article used in the home cannot be classified as a household article" (10 CIT at 257).
It may be argued that the glass "bowls" are classifiable in subheading 7013.29.10, HTSUS, as incomplete or unfinished drinking glasses, pursuant to GRI 2(a). To be classified as an incomplete or unfinished article under GRI 2(a), the article must have the essential character of the complete or finished article.
In determining the essential character of an article under the HTSUS, the Courts have looked to the function or use of the article. See Sharp Microelectronics Technology, Inc. v. United States, 932 F. Supp. 1499, 1504-1505 (CIT 1996), affirmed 122 F.3d 1446 (1997), in which the Court cited the applicable EN to determine that the essential character, for purposes of GRI 2(a), of automatic data processing machines under heading 8471 is given by "... the ability to process data ...." 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); Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F.3d 969 (Fed. Cir. 1997); and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995), in which the Court looked to the role of the constituent material in relation to the use of the goods of which the material was a part in determining essential character, for purposes of GRI 3(b).
The function or use of a drinking glass is to hold or contain fluids to be drunk from the glass (see Random House Unabridged Dictionary (2d Ed. 1993), "glass ... 4. A tumbler or other comparatively tall, handleless drinking container" and "drink ... 1. To take water or other liquid into the mouth and swallow it; imbibe"). To be able to practically perform this function, a drinking glass must be able to stand or rest without support (i.e., it must have a flat bottom, or a stem like a wine glass; see Riekes Crisa, supra, in which the Court stated that an examination of the glass parts considered in that case "indicates that they can not be used, and that ... they are unlikely to be purchased, without the wooden stand" 14 CIT at 249).
The glass "bowls" under consideration cannot stand on their own. Accordingly, we conclude that they do not have the essential character of drinking glasses and may not be classified as such in subheading 7013.29, HTSUS, pursuant to GRI 2(a).
In reaching this conclusion, we have considered two rulings under the TSUS which have been brought to our attention. In regard to the applicability of administrative and judicial decisions under the TSUS to the HTSUS, the legislative history to the legislation implementing the HTSUS (Public law 100-418, Title I, § 12-4(a), August 23, 1988, 102 Stat. 1148) states:
In light of the significant number and nature of changes in nomenclature from the TSUS to the HTS, decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS. [House Conf. Rep. No. 100-576, 100th Cong., 2d Sess, April 20, 1988, at 549-550; reprinted at 1988 U.S.C.C.A.N. 1547, 1582-1583]
HQ 553654 dated August 20, 1985, regarded the classification under TSUS of pieces of glass in the rough shape of stems of finished glassware which, after importation, were to be finished and fused to "bowls" manufactured in the United States. HQ 553654 held the glass pieces to be other articles, not specially provided for, of glass, in item 548.05, TSUS, on the basis that the glass pieces were not so far advanced as to be considered unfinished glasses for serving beverages. Customs distinguished the facts in HQ 553654 from those in HQ 045680 dated September 13, 1977, which had held that stems and bowls for glassware, imported separately and heated after importation to fuse them together, were not classified in item 548.05, TSUS, but were classified in item 546.52, TSUS, as articles chiefly used for serving food or beverages.
HQs 553654 and 045680 were issued before the decision of the Court in Riekes Crisa, supra, and Glass Products, supra. The Customs Regulations require that, unless the Commissioner otherwise directs, the principles of any court decision adverse to the Government shall be applied by Customs (subject to certain exceptions and procedures) (19 CFR 152.16). The holding of HQ 553654, that glass pieces to be used as stems are classified as glass articles not specially provided for, is not necessarily inconsistent with the principles of Riekes Crisa and Glass Products. However, HQ 045680 is inconsistent with the principles of those decisions and, therefore, has been revoked by action of the Courts.
The glass "bowls" are classified in subheading 7020.00.00, HTSUS, as other articles of glass. This is consistent with EN 70.20, which states that "[t]his heading covers glass articles (including glass parts of articles) not covered by other headings of this Chapter or of other Chapters of the Nomenclature" (emphasis added). Because the glass "bowls" are not classifiable in other headings of Chapter 70 or elsewhere in the HTSUS, they must be classified in heading 7020, as indicated by the quoted material from the EN. This is also consistent with HQs 953384 dated September 14, 1993, holding that the glass parts of a "half-yard-of-ale" and a "foot-of-ale", imported without stands, similar to the merchandise in Riekes Crisa, supra, were classified in subheading 7020.00.00, HTSUS, and HQ 957413 dated March 31, 1995, holding that the glass portion of a "floor standing vase" (the glass portion had a concave bottom which would not allow it to stand by itself; the other portion was a metal stand) was classified in subheading 7020.00.00, HTSUS, when imported without the stand.
HOLDING:
"Bowls" to be processed into glass stemware after importation are classifiable as other articles of glass in subheading 7020.00.00, HTSUS.
The protest should be ALLOWED. 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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director,
Commercial Rulings Division