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HQ W968359




May 29, 2007

CLA-2 OT:RR:CTF:TCM W968359 HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99

Port Director
Port of San Francisco
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111

RE: Modification of HQ 958837; mirrored glass decorative appliqués

Dear Port Director:

This is in reference to Headquarters Ruling Letter ("HQ") 958837, dated June 18, 1996, in which the tariff classification of certain mirrored glass decorative appliqués, with and without backing, was determined under the Harmonized Tariff Schedule of the United States ("HTSUS"). We have reconsidered HQ 958837 and have determined the tariff classification of the mirrored glass decorative appliqués without backing is not correct. The tariff classification of the mirrored glass appliqués with backing is not in issue.

As an initial matter we note that under San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the decision on the merchandise which was the subject of Protest 5201-00-100573 was final on both the protestant and the U.S. Customs Service (now, U.S. Customs and Border Protection ("CBP")). Therefore, while we may review the law and analysis of HQ 958837, any decision taken herein would not impact the entries subject to that ruling.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published on April 11, 2007, in the Customs Bulletin, Volume 41, No. 16. No comments were received in response to this notice.

FACTS:

HQ 958837 described the articles under consideration as follows:

The subject articles consist of mirrored glass decorative appliqués of various shapes. They are between 4 and 6" long and 2 and 4" wide. All are backed with a thin metallic coating. Some are additionally backed with wood, cut to shape. The mirrored glass portion is decorated over the entire surface and has low reflective properties. These articles are designed for mounting on the frames of standard mirrors of domestic origin to provide an ornate finished product.

Based on this information, this office classified the subject articles in heading 7006, HTSUS, which provides for worked glass of heading 7003, 7004, or 7005, but not framed or fitted with other materials, after concluding that the appliqués were specifically excluded from heading 7009, HTSUS, because they had surfaces that were worked after manufacture and were articles that would be used to decorate the edges of mirrors.

For the reasons below, it is now our position that the mirrored glass decorative appliqués are provided for in heading 7013, HTSUS, as glassware of a kind used for indoor decoration.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

7006.00 Glass of heading 7003, 7004 or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials:
Other:
7006.00.40 Other .....
7006.00.4010 Having an absorbent or reflecting layer .....

7009 Glass mirrors, whether or not framed, including rear-view mirrors: Other:
7009.91 Unframed:
7009.91.1000 Not over 929 cm2 in reflecting area .....

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:

Legal Note 2 to Chapter 70, HTSUS, provides, in pertinent part:

For the purposes of heading 7003, 7004 and 7005:

(c) The expression "absorbent, reflecting or non-reflecting layer" means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infrared light; or which improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass.

The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

Glass of headings 7003, 7004, and 7005, is classified in heading 7006, HTSUS, if it is further worked, but not fitted or framed with other material. While such glass may possess reflective qualities, Legal Note 2(c) requires it to retain a degree of transparency or translucency. The articles in question are described as mirrored glass decorative appliqués. It is now our position that mirrored glass has no degree of transparency or translucency and we find, therefore, that decorative appliqués made from mirrored glass are precluded from classification in heading 7006, HTSUS, by application of Legal Note 2(c). For a general discussion on this issue see HQ 968221, dated July 31, 2006.

Heading 7009, HTSUS, is an eo nomine provision for glass mirrors. Eo nomine provisions usually include all forms of the article. EN 70.09 explains that glass mirrors of heading 7009, HTSUS, are "glass, one surface of which has been coated with metal (usually silver, sometimes platinum or aluminum) to give a clear and brilliant reflection." The ENs further explain: "[t]his heading covers mirrors in sheets, whether or not further worked. It also includes shaped mirrors of any size, for example, mirrors for furniture, for interior decoration, for railway carriages, etc. ..." The appliqués are made of mirrored glass and are therefore potentially classifiable in this heading. However, EN 70.09 also explains, in relevant part:

This heading also covers mirrors, whether or not framed, bearing printed illustrations on one surface, provided they retain the essential character of mirrors. However, once the printing is such as to preclude use as a mirror, these goods are classifiable in heading 70.13 as decorative articles of glass. (Original emphasis.)

Because the mirrored glass of the subject appliqués is decorated over its entire surface and has low reflective properties, we find that it has lost the essential character of a mirror and is precluded from use as a mirror. Accordingly, we find that these qualities preclude the appliqués from classification in heading 7009, HTSUS.

Heading 7013, HTSUS, provides for glassware of a kind used for decoration. EN 70.13 provides, in pertinent part:

This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:

On the other hand, this heading covers decorative articles which are in the form of mirrors, but cannot be used as mirrors due to the presence of printed illustrations; otherwise they are classified in heading 70.09. (Original emphasis.)

Based on all of the foregoing, we find that the subject mirrored glass appliqués are decorative in nature and unusable as mirrors. They are therefore classified in heading 7013, HTSUS, as glassware of a kind used for decoration.

HOLDING:

By application of GRI 1 and Legal Note 2(c) to Chapter 70, the mirrored glass decorative appliqués without backing are properly classified in heading 7013, HTSUS, as "glassware of a kind used for ... indoor decoration or similar purposes" and are specifically provided for in subheading 7013.99, HTSUS, as "other glassware, other", with exact classification depending on the nature of the decoration and the value of the appliqués.

EFFECT ON OTHER RULINGS:

HQ 958837, dated June 18, 1996, is modified with respect to the classification of the mirrored glass decorative appliqués without backing. The tariff classification of the other items described in HQ 958837 is unchanged. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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