Protest 0401-97-100110

HQ 960530 January 28, 1999 CLA2 RR:CR:GC 960530 JGB CATEGORY: Classification TARIFF NO.: 7013.29.0500 Port Director U.S. Customs Service Suite 618 10 Causeway Street Boston, MA 02222-1059 RE: Protest 0401-97-100110 Dear Sir: This is a decision on protest 0401-97-100110, timely filed February 25, 1997, against your decision in the classification of merchandise entered in 1996 and liquidated December 6, 1996. FACTS: The merchandise consists of specially designed drinking glasses bearing a likeness of Mickey Mouse for special promotional use by McDonald’s Corporation. The glasses, made in Spain under contract to J.D. Durand & Cie, of France, were ordered under contract to be toughened or specially tempered to prevent easy breakage. The Protestant entered the merchandise under subheading 7013.29.0500, Harmonized Tariff Schedule of the United States (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): Drinking glasses, other than of glass ceramics: Other: Pressed and toughened (specially tempered),” dutiable at 12.5 percent ad valorem. You maintain that the merchandise is classified under subheading 7013.29.2000 (HTSUS), the provision in the same six-digit subheading, but for other than pressed and toughened (specially tempered, “Valued over $0.30 but not over $3.00 each” dutiable at 28.5 percent ad valorem (1996).  To confirm the importer’s claim that the glasses were tempered or toughened, your port requested samples for laboratory testing. The importer was unable to provide samples, but offered, as support of the claimed classification, that the same glasses had been tested by the Customs laboratory in Chicago. Information provided to you by the Chicago laboratory indicated that the glasses had been tested and had failed, thus prompting your rate advance for the now protested entries. Further facts to this case indicate that the glasses tested by the Chicago laboratory, while of the same design and for the same purpose, were not made at the same factory. The glasses in the Boston entries were made in Spain, while the glasses tested in Chicago were made in France. To find the appropriate facts, Customs Chicago Laboratory tested five new sample glasses, using the proper test protocol as outlined in T.D. 94-26. That report, Laboratory Report Number 3-97-20418, dated June 18, 1997, indicates that the tested tumblers were found to be toughened (specially tempered). In support of the claim that the glasses were toughened, the protestant has provided specifications for the production of the glassware under this special order. The specifications show that the glassware was to be produced according to the same standards and design in France, Spain and New Jersey, with one minor deviation in the New Jersey production not relevant here. ISSUE: Whether sufficient evidence has been provided to support a claim of classification of the glassware in subheading 7013.29.0500. LAW AND ANALYSIS: The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, 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. There is no dispute here as to the heading or the subheading up to the six-digit level. The proper classification is in either subheading 7013.29.2000, as liquidated, or 7013.29.0500, HTSUS. This protest review decision is principally about what weight, if any, should be accorded the results of the laboratory tests performed, coupled with other information provided. Since your first inquiry or request for information, Customs has not been provided suitable proof in the form of testable samples from the actual entries in question. This is noted in connection with Customs’ general authority under 19 U.S.C.§ 1499 (a)(2)(D) to “inspect a sufficient number of shipments and ... examine a sufficient number of entries, to ensure compliance” with the applicable laws. Here, in the absence of a sample, the entries chosen could not be adequately tested. However, all the written evidence provided surrounding the manufacture of the glasses and the purpose to which they were to be put points to the glasses’ conformity with the standards of subheading 7013.29.0500. From another prospective, there has been no evidence gathered in this matter to suggest that the merchandise in the entries in question was not tempered. The test performed initially by the Chicago Customs Laboratory with its showing of not tempered has been adequately explained by the quality control officers of the importer. The breakage may have been the result of “skin cracks” or “splits” in the base, certainly flaws, but irrelevant to a finding of not tempered. The size of the sample is said to be statistically invalid and the test protocol differed from Customs published standard. All the offered evidence points to a conclusion that the glasses were tempered as the entry initially indicated. This decision does not mean to change the standard for when Customs will test. Customs will continue to test for toughening and tempering where appropriate. HOLDING: The glassware is classified in subheading 7013.29.0500 (HTSUS). You are instructed to ALLOW the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, 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 entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, John Durant, Director, Commercial Rulings Division