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HQ 950837


May 4, 1992

CLA-2 CO:R:C:M 950837 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 7018.90.50

District Director
United States Customs Service
701 San Jacinto
P.O. Box 52790
Houston, TX 77052

RE: Protest no. 5301-91-100324; glass candy shaped ornaments; lampworking; blow lamp; blow-pipe; glass blowing; free- blowing; subheading 7013.99.50; subheading 7013.99.10; General Explanatory Note (H) to Chapter 70; Explanatory Note (G) to heading 7018; NYRL 864870

Dear District Director:

The following is our decision regarding the Protest and Request for Further Review No. 5301-91-100324, dated July 25, 1991. At issue is the classification of glass candy shaped ornaments under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The products at issue are glass ornaments in the shapes of wrapped pieces of candy. These items are produced by a glass- worker who takes glass rods of a specific color and softens them over an open flame. When the glass rods have reached the proper softness, the glassworker shapes the rods by hand over the flame into the desired design. To add more color into the different pieces, another rod is softened and added to the piece as it is being shaped and before it hardens.

A video tape was submitted by counsel which demonstrates the process by which the glass candy shaped ornaments are made. In the video tape, a glassworker turned on a tank of gas and a flame was emitted from a small iron rod. The glassworker took two blue rods and softened them over the flame. He started to shape them into the shape of a piece of candy. Before the piece hardened, he took a yellow rod and a red rod and softened them in the flame and worked them into the piece. Then, the glassworker put a blue rod into the flame and used it to shape the tail shaped piece.

The glassworker used an instrument to make a fluted design on the tail shaped piece. Then, the glassworker made another tail shaped piece and he used an instrument to make a fluted design on this tail shaped piece. The tail shaped pieces resembled the wrapped ends of a piece of candy. The end product was a blue piece of glass shaped like a piece of candy with red and yellow stripes. The whole process took about 5 minutes.

Upon importation, the glass pieces were liquidated in subheading 7013.99.50, HTSUS, which provides for 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, other, other, other, valued over $0.30 but not over $3 each.

It is counsel's argument that the glass pieces are classified in subheading 7018.90.50, HTSUS, which provides for glass beads, imitation pearls, etc...; statuettes and other ornaments of lamp-worked glass, other than imitation jewelry; etc..., other, other. In the alternative, counsel contends that the glass pieces are classified in subheading 7013.99.10, HTSUS, which provides for 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, other, glassware decorated with metal flecking, glass pictorial scenes or glass thread- or ribbon-like effects, any of the foregoing embedded or introduced into the body of the glassware prior to its solidification; millefiori glassware; glassware colored prior to solidification, and characterized by random distribution of numerous bubbles, seeds or stones, throughout the mass of the glass.

ISSUE:

Are the glass pieces classified as other glassware in subheading 7013.99.50, HTSUS, or as ornaments of lamp-worked glass in subheading 7018.90.50, HTSUS, or as glassware decorated with glass thread- or ribbon-like effects; millefiori glassware or glassware colored prior to solidification, and characterized by random distribution of numerous bubbles, seeds or stones, through out the mass of the glass in subheading 7013.99.10, HTSUS.

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings 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 GRI's may be applied, taken in order.

Heading 7013, HTSUS, provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018). Heading 7018, HTSUS, provides for, inter alia, statuettes and other ornaments of lamp-worked glass. Therefore, if the subject pieces are considered to be lamp-worked glass, they would not be classified in heading 7013, HTSUS, but in heading 7018, HTSUS.

The Harmonized Commodity Description and Coding System (HCDCS) General Explanatory Note (H) to Chapter 70, page 926, states that lampworking is performed with the aid of a blow lamp, for the manufacture of ampoules, fancy articles, etc., from glass rod or tubing. HCDCS Explanatory Note (G) to heading 7018, page 942, provides the following:

(G) Statuettes and other ornaments (other than imitation jewellery) obtained by working glass in the pasty state with a blow-pipe. These articles are designed for placing on shelves (animals, plants, statuettes, etc.). They are generally made of clear glass (lead crystal, strass, etc.) or "enamel" glass.

The HCDCS Explanatory Notes constitute the Customs Cooperation Council's official interpretation of the Harmonized System. They provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. While the Explanatory Notes should be consulted for guidance, they should not be treated as dispositive. H. Conf. Rep. No. 576, 100th Cong., 2d Sess., 549, reprinted in 1988 U.S CODE CONG. & ADMIN. NEWS 1582; 54 Fed. Reg. 35127, 35128, August 23, 1989. Therefore, though the glass pieces are not obtained by working glass in the pasty state with a blow-pipe, after reviewing various definitions and discussions on glass shaping and the tools involved, they are not necessarily eliminated from classification as lamp-worked ornaments.

Blow-pipes are most often used in the glass forming process called "glass blowing" or "free-blowing", rather than in lampworking. A blow-pipe is defined as a long narrow iron pipe used to gather, work, and blow molten glass. Webster's II New Riverside University Dictionary, 1984. The McGraw-Hill Encyclopedia of Science & Technology, Volume 2, defines a blowpipe in the following manner:

In glass blowing, a long straight tube on which molten glass is gathered and worked, partly by blowing into the tube. The blowpipe is spun to shape the glass object further by centrifugal force, or by a tool, in which case the blowpipe acts as a spindle for turning.

In Two Hundred Years of American Blown Glass, by Helen and George S. McKearin, Doubleday & Company, Inc, 1950, on page 2, it states the following:

That basic tool, the blowpipe, etc..., has been attributed to the Sidonians. Then, as today, gathering a glob of molten viscous metal on the end of this hollow tube, the blower would inflate it, extending the resulting bubble to the size desired. With a simple tonglike spring tool he would fashion the bubble into the shape he envisioned. We call this process free-blowing.

In addition, in Flameworking- Glassmaking for the Craftsman, by Frederic Schuler, Chilton Book Company, the technique of free- blowing is discussed on page 7:

Free-blowing (or offhand blowing) is more difficult, requiring rather elaborate and expensive facilities. This technique was invented around 50 B.C. (glassmaking was already 1500 years old then). The glass is manipulated at the end of a hollow iron pipe (the blowpipe or blowiron), which is about four feet long. Molten glass is made within a refractory container in a furnace, either by remelting marbles of chunks of glass, or by fusing together the raw materials that form glass. The fluid glass is wound upon or "gathered" on the tip of the hollow iron pipe. It is then shaped and manipulated, inflated, tooled, sheared, and spun out or forced in, etc....

As has been explained above, a blow-pipe is associated with the technique of glass-blowing/free-blowing. Therefore, the fact that the glass pieces are not worked in the pasty shape by a blow-pipe is not dispositive of whether they are lamp-worked or not. Thus, it must be determined whether they are in fact made by the lamp-worked process.

The dictionary definition of lampworking states that it is the process of fashioning objects from glass tubing and cane softened to workability over the flame of a small lamp. The definition states that it should be compared with glassblowing, which is defined as an art of shaping a mass of glass by inflating it through a tube after the glass has been heated to a viscid state. Webster's Third New International Dictionary.

In Flameworking-Glassmaking for the Craftsman, Frederic Schuler writes the following regarding lampworking, on page 7:

This book will concentrate on flameworking techniques, but will describe both flameworking and free-blowing. The technique of flameworking, or reheating glass rod or tubing or other pieces of glass, was once called "lampworking." This method was used as early as 1660 to shape microscope lenses; the simple burners were derived form small oil lamps. With this technique, the glass was heated in a relatively small area where pieces were to be sealed, enlarged, or changed in some manner. The cool ends of the glass were held in the hands, which controlled the rotation and position of the fluid central portion. Today, with a simple workbench, a few tools, and burner which uses gas with oxygen or air, this procedure shapes marvelous jewels of glass in a direct manner.

In Phaidon Guide to Glass, by Felice Mehlman, lampworking is defined as follows on page 13:

Working at the lamp
For making small glass objects such as toys, trinkets and beads, the craftsman would work "at the lamp", where rods of annealed glass could be heated in the concentrated flame of an oil lamp (or later, a Bunsen burner) and shaped by tools.

It is our position that lampworking should be defined by the technique and the types of equipment used. Given the variety of forms a "blow lamp" may now take, if a glassworker softens glass rods and manipulates them over an oil lamp, a bunsen burner or any other "lamp" producing a hot flame, this method of glass shaping should be considered "working at the lamp". Thus, based on the evidence presented regarding the method used to make these pieces, they are made by the lampworking process. Accordingly, they are classified in heading 7018, HTSUS. More specifically, the pieces are classified in subheading 7018.90.50, HTSUS.

In New York Ruling Letter (NYRL) 864870, dated July 22, 1991, glass shaped candies that were produced by a glassworker who took glass rods and softened them over an open flame and then shaped them into the desired design when the glass had reached the proper softness, were classified under subheading 7013.99.50, HTSUS. In that ruling we did not consider the classification of the pieces in heading 7018, HTSUS. As we consider this method of glass shaping to be lampworking, the pieces should be classified in subheading 7018.90.50, HTSUS. Therefore, NYRL 864870 is revoked pursuant to section 177.9(d) of the Customs Regulations [19 CFR 177.9(d)].

HOLDING:

The protest should be approved. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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