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HQ 964701




October 22, 2001

CLA-2 RR:CR:GC 964701 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3207.40.50

Mr. Mitchell Neriah
Customs Consulting Services
415 S. Prospect Ave. Ste. 110
Redondo Beach, CA 90277

RE: Glass Flakes (Model RCF-160), NYDD89620

Dear Mr. Neriah:

This is in reference to your letter, dated August 15, 2000, requesting a reconsideration of New York Ruling (NY)D89620, issued on May 19, 1999, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of glass flakes (Model RCF-160), used to make anti corrosive coatings. You submit additional information about the grinding process the glass undergoes in the manufacture of glass flake.

FACTS:

The merchandise is a glass flake, made of chemical resistant glass called “C-Glass,” used in vinyl ester, epoxy, acrylic paints and acrylic coatings as a barrier against corrosive attack by chemicals and moisture. Laboratory report number 2-1999-21043, dated May 13, 1999, confirms that the sample, a glass frit comprised of very small colorless flakes, is used to make anti-corrosion coatings. To produce the glass flake, raw component materials are melted in a furnace forming liquid glass. The liquid glass passes through a bushing that has air blowing through it. This forms a thin hollow bubble of liquid glass, 1/8” to ¼” in diameter at the opening of the bushing expanding to about 8” at the bubble’s end. The bubble cools and solidifies as it flows downward towards two grinding rollers. Passing through the grinding rollers does not produce uniform size flakes. The glass flakes are segregated by particle size using mesh filters. The average size of the RCF-160 flake is 160 microns.

ISSUE:

What is the classification of the subject glass flake under the HTSUS?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. 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 that 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.

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 and, unless otherwise required, according to the remaining GRIs taken 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 the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are (official interpretation of the Harmonized System at the international level) generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

The following HTSUS subheadings are relevant to the classification of this product:

3207 Prepared pigments, prepared opacifiers and prepared colors, vitrifiable enamels and glazes, engobes (slips), liquid lusters and similar preparations, of a kind used in the ceramic, enamelling or glass industry; glass frit and other glass, in the form of powder, granules or flakes:

3207.40 Glass frit and other glass, in the form of powder, granules or flakes:

3207.40.10 Ground or pulverized

3207.40.50 Other

The discrepancy occurs at the eight-digit level necessitating a GRI 6 analysis. It is the opinion of the Customs Service that the term “ground or pulverized” refers not only to the imported merchandise having been subjected to a process of grinding or pulverizing, but also, that the merchandise be imported in a state of having been ground or pulverized. A substance which has been ground or pulverized is generally in the state of a powder or of granules. The instant merchandise, by virtue of its condition as course flakes measuring approximately 160 microns is not imported in the state of having been ground or pulverized. Although the glass was processed through a machine referred to as a grinder, the imported product does not appear to have been ground or pulverized. This determination is consistent with rulings on similar substances used for the same purposes. (See Headquarters ruling letter (HQ)962732, dated October 8, 1999, and New York ruling letter (NY)A88143, dated October 18, 1996).

HOLDING:

Glass flake is classified in subheading 3207.40.50, HTSUS, the provision for "[P]repared pigments, prepared opacifiers and prepared colors, vitrifiable enamels and glazes, engobes (slips), liquid lusters and similar preparations, of a kind used in the ceramic, enamelling or glass industry; glass frit and other glass, in the form of powder, granules or flakes: [G]lass frit and other glass, in the form of powder, granules or flakes: [O]ther.

EFFECT ON OTHER RULINGS:

NYD89620 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division


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