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HQ 966983




October 26, 2004

CLA-2 RR:CR:GC 966983AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.90.5039, 7114.19.0000

Port Director
U.S. Customs Service
301 East Ocean Blvd.,
Long Beach, CA 90802

RE: Protest 3307-03-100053; Glass vials containing gold leaf, water globes containing gold leaf, 13 ml glass vials

Dear Port Director:

This is our decision on Protest 3307-03-100053, dated November 16, 2003, filed by Salem Minerals, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of glass vials containing gold leaf, water globes containing gold leaf, and empty 15 milliliter (ml) glass vials.

FACTS:

The imported items under dispute are glass waterballs and vials filled with gold leaf floating in a liquid on a plastic base with a sticker that reads “Colorado.” The importer also disputes the classification of 15 milliliter empty flint glass vials entered at the same time as the filled globes and vials. The importer states that these vials are typically used in the U.S. as nail polish containers.

The protested merchandise was entered May 29, 2003 and liquidated on August 8, 2003. The glass globes and vials filled with gold leaf were liquidated under subheading 7114.19.00, HTSUS, the provision for "Articles of goldsmiths' or silversmiths' wares and parts thereof, of precious metal or of metal clad with precious metal: Of precious metal whether or not plated or clad with precious metal: Of other precious metal whether or not plated or clad with precious metal." The empty glass vials were liquidated under subheading 7013.99.40, HTSUS, the provision 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 not over $0.30 each." The protest was timely filed on November 16, 2003.

Protestant claims classification of the filled glass globes and vials under subheading 7108.13.10, HTSUS, the provision for "Gold (including gold plated with platinum) unwrought or in semimanufactured forms, or in powder form: Nonmonetary: Other semimanufactured forms: Gold leaf." In the alternative, the importer claims classification of the filled vials under 7115.90.30, the provision for "Other articles of precious metal or of metal clad with precious metal: Other: Other: Of gold, including metal clad with gold."

The importer claims classification of the empty glass vials under subheading 7010.90.50, HTSUS, the provision for “Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods; preserving jars of glass; stoppers, lids and other closures, of glass: Other: Other containers (with or without their closures): Of a capacity exceeding 0.15 liter but not exceeding 0.33: Other."

ISSUE:

What is the classification of glass articles filled with precious metals and of empty glass vials?

LAW AND ANALYSIS:

Merchandise imported into the United States 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, which 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 for all purposes.

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 their appropriate 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 understanding the language of 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 generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods; preserving jars of glass; stoppers, lids and other closures, of glass:

7010.90 Other:

7010.90.50 Other containers (with or without their closures):

Of a capacity exceeding 0.15 liter but not exceeding 0.33 liter:

7010.90.5039 Other

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:

Other:

Other:

Other:

7013.99.4000 Valued not over $0.30 each

7108 Gold (including gold plated with platinum) unwrought or in semimanufactured forms, or in powder form:

7108.13 Nonmonetary:

Other semimanufactured forms:

7108.13.1000 Gold leaf

7114 Articles of goldsmiths' or silversmiths' wares and parts thereof, of precious metal or of metal clad with precious metal:

Of precious metal whether or not plated or clad with precious metal:

7114.19.0000 Of other precious metal whether or not plated or clad with precious metal

Other articles of precious metal or of metal clad with precious metal:

7115.90 Other:

Other:

7115.90.3000 Of gold, including metal clad with gold

Note 1(b) to Chapter 70, HTSUS, states, in pertinent part, that the provisions for glass and glassware “do not cover . . . articles of chapter 71.” The Notes to Chapter 71 state, in pertinent part, the following:

Subject to note 1(a) to section VI and except as provided below, all articles consisting wholly or partly:

Of precious metal or of metal clad with precious metal, are to be classified in this chapter.

2. (a) Headings 7113, 7114 and 7115 do not cover articles in
which precious metal or metal clad with precious metal
is present as minor constituents only, such as minor
fittings or minor ornamentation (for example,
monograms, ferrules and rims), and paragraph (b) of
the foregoing note does not apply to such articles.

10. For the purposes of heading 7114, the expression “articles of goldsmiths’ or silversmiths’ wares” includes such articles as ornaments, tableware, toilet-ware, smokers' articles and other articles of household, office or religious use.

The instant gold leaf filled glass vials and globes are articles consisting partly of gold leaf, a precious metal. The gold leaf, is substantial and of paramount importance to the function of this decorative article. The gold leaf is not merely a minor constituent of the article. Therefore, under GRI 1, this article must be classified in Chapter 71 according to the legal notes thereto.

Heading 7108, HTSUS, describes gold leaf as a semimanufactured form of a precious metal. However, this heading describes only part of the instant merchandise. It cannot therefore be used as a GRI 1 classification in this case. Rather, we must decide amongst the headings of Chapter 71, HTSUS, that describe articles of precious metal.

The importer protests that heading 7114, HTSUS, does not describe the article because "goldsmith's wares" are those items made by a craftsman of the decorative or industrial arts. We do not take such a narrow view of the term "goldsmith's wares." Rather, the article consists of a semimanufactured form of gold, namely gold leaf. The gold has been worked and fashioned into part of an ornamental souvenir. Under Chapter 71, note 10, ornaments are specifically covered in heading 7114. Since we find that heading 7114, HTSUS, describes the article at issue, it cannot be more specifically described by heading 7115, HTSUS, as an "other article of precious metal.

The importer has submitted evidence that the empty glass vials are manufactured for the conveyance of nail polish but that they are imported for the fugitive use of creating a souvenir in this case. We agree that the appearance of the vial is that of some type of cosmetics container, such as nail polish or perfume. Hence, we concur with the protestant that the empty glass vials belong to a class or kind of goods that are principally used for the conveyance of cosmetic goods rather than ubiquitous glass articles of heading 7013, HTSUS. Therefore, the classification of the empty glass vials is 7010.90.5039, HTSUS, the provision for “Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods; preserving jars of glass; stoppers, lids and other closures, of glass: Other: Other containers (with or without their closures): Of a capacity exceeding 0.15 liter but not exceeding 0.33 liter: Other."

HOLDING:

The Protest is DENIED except to the extent that reclassification in accordance with this decision results in a partial refund. The glass waterglobes and glass vials filled with gold leaf and mounted on a base are classified in subheading 7114.19.0000, HTSUSA (annotated) the provision for "Articles of goldsmiths' or silversmiths' wares and parts thereof, of precious metal or of metal clad with precious metal: Of precious metal whether or not plated or clad with precious metal: Of other precious metal whether or not plated or clad with precious metal." The duty rate is 7.9% ad valorem.

The empty glass vials are classified in 7010.90.5039, HTSUSA, the provision for “Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods; preserving jars of glass; stoppers, lids and other closures, of glass: Other: Other containers (with or without their closures): Of a capacity exceeding 0.15 liter but not exceeding 0.33 liter: Other." The duty rate is free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

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.

Sincerely,

Myles B. Harmon, Director

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