HQ 962732

October 8, 1999

CLA-2 RR:CR:GC 962732K

CATEGORY: Classification

TARIFF NO.: 3207.40.50

Port Director

U.S. Customs Service

2350 N. Sam Houston Parkway

Houston, Texas 77032

RE: Protest 5301-99-100093; Glass Frit

Dear Port Director:

The following is our response to the referral by your office, dated
April 7, 1999, of the request for further review of the above-referenced
protest.

**FACTS**:

The consumption entries covering the imported merchandise were reported
as being liquidated between December 11, 1998, and January 4, 1999,
under the provision for other glass frit and other glass not ground or
pulverized, in subheading 3207.40.50, Harmonized Tariff Schedule of the
United States (HTSUS). A timely protest under 19 U.S.C. 1514 was
received on February 12, 1999. The protestant requested reliquidation of
the entries under the provision for other glass frit and other glass,
ground or pulverized, in subheading 3207.40.10, HTSUS.

Customs Laboratory Report No. 5-1998-30409 dated April 30, 1998,
describes a sample of the merchandise as being composed of fragments of
glass ranging in size from 1 MM to 5 MM and that the fragments are in
various shapes (angular, rounded, cylindrical, etc.). The report
concluded that the sample is not in the form of a powder, granules or
flakes, and it is not ground or pulverized.

The protestant refers to the supplier's description of the merchandise
as being in "granular" form to support the position that the glass is
"ground or pulverized".

**ISSUE**:

The issue is whether the glass is in "ground or pulverized" form.

**LAW AND ANALYSIS**:

Heading 3207.40, HTSUS, at the six digit level, provides for glass frit
and other glass, in the form of powder, granules or flakes. There is a
break out at the eight digit level, subheading 3207 40.10, HTSUS, which
provides for glass frit and other glass that is ground or pulverized and
further at the eight digit level, subheading 3207.40.50, HTSUS, provides
for other glass that is not ground or pulverized.

The protestant equates the term "granular" with the term "ground or
pulverized". Granular is defined as containing or consisting of grains
or granules. Granule is defined as a small grain. Grain is defined as a
tiny solid particle, as of salt or sand\...also crystallization, esp. of
sugar. (Webster's New World Dictionary, 1972.)

The Customs Laboratory Report concluded that the sample of the
merchandise was not in the form of powder, granules or flakes and was
not ground or pulverized. The description of the sample in the
laboratory report and as evidenced by the photostatic copy of the glass
as part of the report, clearly demonstrates that the sample was not in
"granular" or ground or pulverized form. Also, if we conclude that the
term "granular' equates with the term "ground or pulverized", the glass
article is not in granular form as defined in the dictionary.

A decision in this matter rests on a question of fact rather than a
question of law and based on the facts, we conclude that the entries
were properly liquidated.

The protestant cites New York Ruling Letter 898704 (NYRL) dated August
23, 1994, in which, glass frit was classified in subheading 3207.40.10,
HTSUS, in the form of powder, granules or flake, ground or pulverized.
However, that conclusion, as implied in the ruling, was the result of a
Customs Laboratory Report. Obviously, unlike the current case, the glass
which was the subject of NYRL 898704 was found to be ground or
pulverized.

**HOLDING**:

The glass product as described above, that is not ground or pulverized,
is classified under the provision for other glass frit and other glass
not ground or pulverized, in subheading 3207.40.50, HTSUS.

You are directed to deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
Revised Protest Directive, dated August 4, 1993, a copy of this decision
attached to Customs Form 19, Notice of Action, should be provided by
your office to the protestant no later than 60 days from the date of
this decision and any reliquidations of entries in accordance with this
decision must be accomplished prior thereto.

Sixty days from the date of this decision the Office of Regulations and
Rulings will take steps to make this decision available to Customs
personnel, and to the general public on the Customs Home Page on the
World Wide Web at www.customs.gov, by means of the Freedom of
Information Act and other public access channels.

.

Sincerely,

John Durant, Director

Commercial Rulings Division

Office of Regulations and Rulings