Protest and Application for Further Review Number 5301-18-100535; Tariff classification of glass trays from China

HQ H301865 September 19, 2019 OT:RR:CTF:CPMMA H301865 APP CATEGORY: Classification TARIFF NO.: 7013.99.5000 Port Director, Port of Jacksonville U.S. Customs and Border Protection 10426 Alta Drive Jacksonville, FL 32226 Attn.: Konika Bradford, Import Specialist RE: Protest and Application for Further Review Number 5301-18-100535; Tariff classification of glass trays from China Dear Ms. Bradford: The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 5301-18-100535, timely filed on September 4, 2018, on behalf of Natural Life Collections, Inc. (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of glass trays from China. FACTS: The merchandise is described as “glass expression trays” made of clear soda lime glass. Inscription and design motifs are printed onto a plastic film, which is then heat transferred to the glass and painted/coated on the back surface. The unit value of the trays is over $0.30 but not over $3 each. The glass is not cut or engraved. The glass component predominates by weight and bulk. Each tray is marked on the back “Not for food use.” The trays are marketed as “glass trays” and are found on Natural Life Collections, Inc.’s website under the “trinket dishes” tab. Display stands are imported and sold separately. Below are representative images of the trays taken from protestant’s website:



The first tray measures approximately 3 inches square by 0.5 inches deep. Centered on the tray is the image of a pineapple and around it are the words, “Live a Pineapple Life, Be Sweet on the Inside, Stand Tall, and Wear a Crown.” The second tray measures approximately 3 inches square and 0.5 inches deep. On the tray are printed colorful owls and flowers with the words, “Do More of What Makes You Happy.” The third tray measures approximately 6 inches by 4 inches by 0.5 inches deep. Printed in gold lettering across the front in all upper case letters are the words, “Be Happy Always.” The fourth tray measures approximately 4 inches round and 0.5 inches deep. A flower motif surrounds the border and the middle of the tray displays the words, “I Love You Mom.” The fifth tray measures approximately 4 inches round and 0.5 inches deep. A flower motif decorates the border and the middle of the tray bears the words, “Sisters Make the Best Friends.” The sixth tray measures approximately 3 inches square and 0.5 inches deep. Printed flowers surround the words, “Good Friends Are Like Stars. You Don’t Always See Them, But You Know They Are Always There.” The seventh tray measures approximately 4.75 inches square and 0.5 inches deep. It bears the image of an elephant blowing hearts from the trunk and the words, “Be Happy.” The Protest and AFR cover one entry of the subject glass expression trays made on November 3, 2017, under subheading 7013.99.50, HTSUS, dutiable at 30% ad valorem, which provides 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 over $0.30 but not over $3 each.” On March 9, 2018, the entry was liquidated as entered. This Protest/AFR, filed on September 4, 2018, requests reliquidation, free of duty, under subheading 4911.99.80, HTSUS, which provides for “Other printed matter, including printed pictures and photographs: Other: Other: Other: Other.” ISSUE: Whether the subject glass trays are classifiable as other printed material of heading 4911, HTSUS, or as decorative glassware of heading 7013, HTSUS. LAW AND ANALYSIS: CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The Protest/AFR was timely filed within 180 days of liquidation of the entries. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review of this Protest is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the Protest was filed involves questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts. 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 (“AUSRI”). The GRIs and the AUSRI are part of the HTSUS, and are 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 order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. AUSRI 1(a) provides that: In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. The HTSUS provisions under consideration are as follows: 4911 Other printed matter, including printed pictures and photographs: 7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The General ENs to chapter 49, HTSUS, state, in relevant part: … this Chapter covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations …. EN. 49.11, states, in relevant part: This heading covers all printed matter (including photographs and printed pictures) of this Chapter … but not more particularly covered by any of the preceding headings of the Chapter. Framed pictures and photographs remain classified in this heading when the essential character of the whole is given by the pictures or photographs; in other cases such articles are to be classified in the heading appropriate to the frames, as articles of wood, metal, etc…. The following articles, in particular, are also excluded from this heading: … (d)   Decorative glass mirrors, whether or not framed, with printed illustrations on one surface (heading 70.09 or 70.13). The General ENs to chapter 70 state, in relevant part: This Chapter covers glass in all forms and articles of glass (other than goods excluded by Note 1 to this Chapter or covered more specifically by other headings of the Nomenclature). EN 70.13 states, in relevant part, that heading 7013 covers: (4)   Glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table-centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views. These articles may be e.g., of ordinary glass, lead crystal, glass having a low coefficient of expansion (e.g., borosilicate glass) or of glass ceramics (the latter two in particular, for kitchen glassware). They may also be colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles). Table-centres consisting of a simple mirror are, however, excluded (see Explanatory Note to heading 70.09). Protestant asserts that the glass trays are classifiable under heading 4911, HTSUS, specifically in subheading 4911.99.80, HTSUS, by application of GRI 3(b), as a composite good with the printed elements imparting the essential character. Protestant claims that the trays are purchased because of their printed inscriptions and the glass component gives the printed portion more durability that survives longer than a usual greeting card or inspirational message. Protestant cites to New York Ruling Letter (“NY”) N041409, dated November 13, 2008 (“wooden framed glass expression wall/table décor”); NY N065025, dated July 10, 2009 (wood-mounted curved glass article containing a printed poem); and NY N284310, dated March 17, 2017 (printed packaging film and labels). First, we need to determine whether the printed glass tray is “other printed matter” of heading 4911, HTSUS. Chapter 49 covers “all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations.” General ENs to chapter 49. The printing component of the trays is secondary to their primary use. The printing on the trays serves a decorative rather than communicative purpose because the printing does not alert customers to any brand, event, source for obtaining more information, or instructions pertaining to the trays. The trays are marketed as “glass trays” on the company’s website at www.naturallife.com and are found under the link for “trinket dishes.” The trays are printed with the words, “Not for Food Use.” The marketing as such emphasizes the items’ utilitarian function as trays to hold trinkets and other small items. Customers may order the trays alone or with display stands. Even though the trays have an inscription and design on them, they are also capable of carrying a variety of small items. The subtle print element does not determine their essential nature and use. Rather, the essential nature and use are determined by the decorative and functional aspects of the glass itself. As imported, they are general purpose trays, stands, or plates capable of holding small items such as jewelry, cosmetics, and paper clips. Therefore, the printing is of secondary importance and as a result, the trays are not “other printed material” of heading 4911. We next turn to heading 7013, HTSUS, which, in relevant part, includes plates and trays as well as “glassware of a kind used for . . . indoor decoration or similar purposes.” Heading 7013 is a “principal use” provision and is governed by AUSRI 1(a), HTSUS. Thus, the article’s principal use in the United States at the time of importation determines whether it is classifiable within a particular class or kind. In determining whether the principal use of a product is for indoor decoration or similar purposes, and thereby classified in heading 7013, HTSUS, CBP considers a variety of factors, including: (1) general physical characteristics of the merchandise; (2) expectation of the ultimate purchaser; (3) channels, class or kind of trade in which the merchandise moves; (4) environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed); (5) usage, if any, in the same manner as merchandise which defines the class; and (6) economic practicality of so using the import and recognition in the trade of this use. See United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976), cert. denied, 429 U.S. 979 (1976). Not all of these factors will necessarily be relevant in every situation. As we already noted, the instant glass trays are intended to be decorative and functional given their shape and appearance. The trays are marketed as “glass trays” on the protestant’s website, under the link for “trinket dishes,” and are used for holding small items. Heading 7013 allows for glass articles covered by it to be “etched or engraved, or otherwise decorated.” EN 70.13. CBP has previously classified glass expression articles in heading 7013. In NY E82730, dated June 14, 1999, CBP classified a glass plaque with a paper card underneath the glass panel conveying an inspirational message, “A Wedding Blessing” under heading 7013, HTSUS, in subheading 7013.99.50, HTSUS. In NY K84584, dated April 8, 2004, CBP classified a glass plaque decorated with holly leaves and the words “Thoughts of Loved Ones Make The Holidays Glow” under heading 7013, HTSUS, in subheading 7013.99.50, HTSUS. In NY H89805, dated March 26, 2002, CBP classified a glass plaque with a silk-screen-printed image of a teddy bear and a message written in French under heading 7013, HTSUS, in subheading 7013.99, HTSUS. Similar to the glass plaques in these CBP rulings, the instant glass trays are essentially glassware decorated with messages and motifs that are covered by heading 7013, HTSUS. See EN 70.13. Unlike the wooden framed glass expression wall/table décor in NY N041409 and the printed glass with wooden base in NY N065025, supra, cited by protestant, which were primarily designed and used for décor and display, the instant glass trays’ principal use is to serve as “trinket dishes.” The sheet of extruded polyethylene plastic and the printed polypropylene plastic labels in NY N284310, cited by protestant, were used to display brand names and other product information, which is not the case in the instant matter. Accordingly, the subject glass trays are classifiable as articles of glass under heading 7013, in subheading 7013.99.50, HTSUS, by application of GRIs 1 and 6, and there is no need to resort to GRI 3. HOLDING: By application of GRIs 1 and 6, the glass trays are classified under heading 7013, HTSUS, specifically under subheading 7013.99.50, HTSUS, which provides 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 over $0.30 but not over $3 each.” The column one, general rate of duty at the time of entry, for the glass trays, was 30 percent ad valorem. 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 at https://hts.usitc.gov/current. Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the Protest in full. A copy of this decision should be attached to the Form 19 Notice of Action. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division