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HQ 966442





September 25, 2003

CLA-2 RR:CR:GC 966442 RSD

CATEGORY: CLASSIFICATION

Tariff No. 7018.90.50

Stephen S. Spraitzar, Esq.
Law Offices of George R. Tuttle
Three Embarcadero Center
Suite 1160
San Francisco, California 94111

RE: Reconsideration of NY I84003, Lamp-worked Glass Articles known as Ecospheres, Lamp-Worked Glass, Ornaments

Dear Mr. Spraitzar:

This is in response to your letter dated February 27, 2003, on behalf of Ecosphere Associates, Inc., requesting reconsideration of New York Ruling Letter (NY) NY I84003 dated August 2, 2002, concerning the tariff classification of a glass article known as an “ecosphere”. Two samples of the ecosphere were submitted. You made a supplemental submission dated April 14, 2003. In addition, you submitted a video on a CD-Rohm to demonstrate how the ecosphere is made. An accompanying e-mail further explained the process.

FACTS:

The imported merchandise is a glass sphere with a small glass plug that is used as a cover. After importation, the importer fills the glass sphere with water, active microorganisms, bright red shrimp, and algae. The importer then seals the sphere with the hole cover. The finished products are thereafter sold to consumers, universities and schools for display.

The video that you submitted shows that the first step in producing the ecospheres is the arrival of borosilicate glass tubes at the glass factory. You indicate that borosilicate tubes have a nominal diameter of nine (9) millimeters. The tubes are segmented and then heated over a liquid propane gas burner until they reach a molten state. The molten glass is pulled to create long tubular sections at the ends. These ends will be used later as hand holds for post-processing. The glass worker attaches a flexible tube to the segmented glass tubes. During this sequence, the glass acquires a spherical shape as a result of the air being blown into it. By this process, the articles are made by hand.

One of the handles on the glass is then removed. Next, the flat base is formed. After that, using a graphite form tool plug, a hole is formed. This plug creates the specific size of the hole. The glass sphere is then mounted onto a finger-type holder so that the last remaining handle segment can be removed and the top rounded. The sphere is then dismounted from the finger holder and is placed onto a graphite holding tool. The glass sphere is then placed into a wire basket with other parts that will then go into the annealing oven, where an even heating and cooling will remove any stresses that may cause the glass to crack. Based on the video, it appears that except for the annealing in an oven, all the processing done to make the glass spheres is performed over an open flame.

ISSUE:

Are the glass ecospheres classified as other glassware in subheading 7013.99.50, HTSUS, or as statuettes and other ornaments of lamp-worked glass, other, other in subheading 7018.90.50, HTSUS?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI’s). 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.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s 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. Customs believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS provisions 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): Other glassware:

7013.99 Other:

7013.99.50 Valued over $0.30 but not over $3 each.

7018 Glass beads, imitation pearls, imitation precious or semiprecious stones and similar glass smallwares and articles thereof other than imitation jewelry; glass eyes other than prosthetic articles; statuettes and other ornaments of lamp-worked glass, other than imitation jewelry; glass microspheres not exceeding 1 mm in diameter:

7018.50 Other:

7018.50.90 Other.

There is no question that the articles are classifiable in Chapter 70, HTSUS, which provides for articles of glass (we note that in Los Angeles Tile Jobbers, Inc. v. United States, 63 Cust. Ct. 248, C.D. 3904 (1969), the Court stated that “all articles of glass are generally defined as ‘glassware’” (63 Cust. Ct. at 250; citing Webster’s Third New International Dictionary, Merriam-Webster (1968); see also Webster’s New World Dictionary, Third College Edition, Webster’s New World, at 573 (1988), defining “glassware” as “articles made of glass”). What must be determined is which subheading within Chapter 70 best describes the articles.

The fundamental issue in this case that must be resolved is whether the ecospheres should be considered articles of lamp-worked glass classified in heading 7018, HTSUS. The national import specialist, in reviewing the sample glass spheres, noted that they are substantially different from the typical product claimed to be a lamp-worked ornament of heading 7018, HTSUS. In a memorandum, he explained that generally, lamp-worked ornaments are very small (e.g., small glass flowers, candies or animals).

In Headquarters Ruling Letter (HQ) 950837, dated May 4, 1992, we analyzed the term “lamp-working” as used in heading 7018, HTSUS, and reviewed several authorities on glass working to better understand the meaning of the term “lamp-worked glass”. In HQ 950837, we first pointed out that a dictionary definition of lamp-working 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.

We next looked at a specific book on lamp-working called In Flameworking-Glassmaking for the Craftsman, Chilton Haynes (1968), by Frederic Schuler, and quoted the following language regarding lampworking, on page 7:
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 from 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.

Another resource that we examined was In Phaidon Guide to Glass, Prentice Hall (1987), by Felice Mehlman. In that book, 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.

Based on these authorities we summarized our position on lamp-working as:

The technique and the types of equipment used should define lampworking. 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”.

In considering the ecospheres, we looked at a recent authority on glass working entitled Advanced Glassworking Techniques, Glass Mountain Press (2003), by Edward T. Schmid, which defines “lamp-working” as process of heating up glass over a torch. Often incorporating the use of rods and tubing to create works of art. Often (although not limited to) smaller scaled piece of incredible detail and complexity.

With this information as guidance, we reviewed the background material submitted on the ecospheres and carefully watched the video that you submitted. The video shows that the glass used to make the ecospheres is continuously melted and manipulated over an open flame. The glass workers use a blowpipe to create the spherical shape of the ecosphere. Based on the video, it appears that when the blowpipe is being used, the glass is still heated over a flame. In fact, the only step involved in making the glass sphere that is not done over a flame is the annealing process, which is done in an oven. However, the annealing is only a finishing operation that prevents the glass spheres from cracking, and it is done after the ecospheres have already acquired their final shape and dimensions. It is our position that the annealing process done in this case as a finishing operation would not disqualify the ecospheres from being considered lamp-worked glass.

Although the ecospheres may not resemble typical lamp-worked pieces, they are nevertheless produced through the continuous heating and shaping or manipulating of glass tubing over a torch/open flame. Thus, in consideration of the specific information and evidence that you have presented, we are satisfied that they are made as a result of a lamp-working process.

However, in order to be classified in heading 7018, the articles must also be described as statuettes and other ornaments of lamp-worked glass. The EN's for heading 7018 indicate that the heading includes:

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.

You contend that the flat bottom on the sphere indicates that the ecospheres are intended to be placed on a flat surface such as a shelf. In addition, these glass sphere are designed to be filled with water, microorganisms, bright red shrimp and algae after importation, so that purchasers can display them for aesthetic purposes. Moreover, the items are made of clear glass. Therefore, we consider the ecospheres to be ornaments within heading 7018, HTSUS.

Accordingly, we find that the ecospheres are classified in heading 7018, HTSUS. More specifically, the pieces are classified in subheading 7018.90.50, HTSUS, which provides for other ornaments of lamp-worked glassOther: Other.

HOLDING:

The subject ecospheres are classified in subheading 7018.90.50, HTSUS, as “. statuettes and other ornaments of lamp-worked glass..: Other: Other.”

EFFECT ON OTHER RULINGS:

NY I84003 dated August 2, 2002 is revoked.

Sincerely,


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