HQ 953016

April 28, 1993

CLA-2 CO:R:C:M 953016 MMC

CATEGORY: Classification

TARIFF NO.: 9405.50.40; 7013.39.20; 7013.29.10; 7013.29.20;

9902.70.15; 7013.99.10; 7013.99.40; 7013.99.50

District Director

U.S. Customs Service

P.O. Box 619050

1205 Royal Lane

Dallas, Tx 75261

RE: Protest No. 5501-92-100387; glassware; pitchers; vases;

bowls; carafes; candleholders; drinking glasses; colored bubble

glass; HRL 089054; Addition U.S. note 1 (a)

Dear District Director:

This is in response to the Application for Further Review of

Protest No. 5501-92-100387 pertaining to the classification of

glass pitchers, bowls, vases, carafes, candleholders, and

drinking glasses under the Harmonized Tariff Schedule of the

United States (HTSUS). Sample glasses, and a brochure with

pictures of articles the subject of this protest were submitted

for examination.

FACTS:

A description of the articles, along with their liquidated

classification, is as follows:

Style Description Liquidated Classification

Bowls

1075AC Ensaladera 7013.39.20

587AC Ensaladera Derecha \" \" \"

1045C Ensalardera Optica \" \" \"

1045AC \" \" \" \" \"

595C \" \" \" \" \"

595AC \" \" \" \" \"

Pitchers

664C Jarra Bola \" \" \"

664AC \" \" \" \" \"

678AC Jarra Derecha \" \" \"

743C Jarra Pera \" \" \"

776EAC Medida (Carafe) \" \" \"

Candleholder

57AC Cahdelero \" \" \"

Drinking Glasses

803 MZ Surtidos 7013.29.10/20

83AC Cama \" \" \"

144AC Copa Champanera \" \" \"

192AC \" \" \" \" \"

221D\*AC Copa Conica \" \" \"

339C Copa Egferica \" \" \"

450AC Copa Jolin \" \" \"

1074AC Copa Linda \" \" \"

1076C Copa Vino \" \" \"

552AC \" \" \" \" \"

1120AC \" \" \" \" \"

855AC Tarro \" \" \"

875C Vaso \" \" \"

875AC \" \" \" \"

881B \" \" \" \"

889B \" \" \" \"

894B \" \" \" \"

896C \" \" \" \"

896AC \" \" \" \"

900C \" \" \" \"

900AC \" \" \" \"

911C \" \" \" \"

911AC \" \" \" \"

1077C \" \" \" \"

939AC \" \" \" \"

946B \" \" \" \"

1088AB Vaso Conico \" \" \"

1097AB Vaso Conico \" \" \"

Vases

604C Florero Bagdad 7013.99.50

605B \" \" \" \" \"

605C \" \" \" \" \"

605BA \" \" \" \" \"

617C Florero Chino \" \" \"

617BA \" \" \" \" \"

618C \" \" \" \" \"

628AC Florero Violetero \" \" \"

The \"B\" and \"AB\" designations in the article description

indicate glass which has been solely colored by using recycled

glass. The \"AC\" and \"EAC\" designations indicate articles which

have bases and rims of a solid blue color but use recycled glass

for the other portions of the article. Finally, the \"C\" and \"BA\"

designations indicate that the complete article is made of a

solid blue colored glass.

The importer argues that all pitchers, carafes, bowls,

candleholders, and vases are colored bubble glass classifiable

under subheading 7013.99.10, HTSUS, which provides for decorative

glassware of colored bubble glass. The importer also argues that

all drinking glasses are colored bubble glass provided for in

subheadings 7013.29.10 or 7013.29.20, HTSUS, and therefore are

classifiable under subheading 9902.70.15, HTSUS, which provides a

temporary reduction in duty for colored bubble drinking glasses.

The entries were liquidated on October 2, 1992, and the

protest was timely filed on October 30, 1992.

ISSUES:

Are the glass pitchers, bowls, vases, carafes,

candleholders, and drinking glasses colored bubble glass

classifiable under subheading 7013.99.10, HTSUS or subheading

9902.70.15, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s),

taken in order. GRI 1, HTSUS, states in part that for legal

purposes, classification shall be determined according to the

terms of the headings and any relative section or chapter notes.

Candleholders

Heading 9405, HTSUS, provides for, inter alia, lamps, and

lighting fittings. In understanding the language of the HTSUS,

the Harmonized Commodity Description and Coding System

Explanatory Notes may be consulted. The Explanatory Notes (EN),

although not dispositive, are to be used to determine the proper

interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August

23, 1989). EN 94.05, page 1581, notes that lamps and lighting

fittings of this group can be constructed of any material and use

any source of light, including candles. In addition, EN 94.05

states that \"\[t\]his heading covers in particular: \... (6)

Candelabra, candlesticks, candle brackets, e.g., for pianos.\"

Because the glass candleholders are similar to candlesticks and

are used as candleholders, they are classifiable in subheading

9405.50.40, HTSUS, which provides for \[n\]on-electrical lamps and

lighting fittings: \[o\]ther: \[o\]ther. See HRL 089054 (8/2/91)

Inasmuch as the candleholders are classifiable in subheading

9405.50.40, HTSUS, and not subheading 7013.99.10, HTSUS, whether

they are colored bubble glass is irrelevant because no provision

exists for the classification of candleholders made of colored

bubble glass.

Pitchers, Bowls, and Carafes(table/kitchen glassware)

The two subheadings under consideration for the pitchers,

carafes, and bowls are:

7013.39.20 \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018): \[g\]lassware of a kind used for table (other

than drinking glasses) or kitchen purposes other

than that of glass-ceramics: \[o\]ther: \[o\]ther:

\[v\]alued not over \$3 each.

7013.99.10 \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of subheading 7010 or

7018): \[o\]ther glassware: \[o\]ther: \[g\]lassware

decorated with metal flecking, glass pictorial

scenes or glass thread- or ribbon-like effects,

any of the foregoing embedded or introduced into

the body of the glassware prior to its

solidification; millefiori glassware; glassware

colored prior to solidification, and characterized

by random distribution of numerous bubbles, seeds

or stones, throughout the mass of the glass.

Additional U.S. Note 1(a), HTSUS, provides that in 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 principle use. Protestant argues

that the pitchers, carafes, and bowls are classifiable as other

decorative glassware under subheading 7013.99.10, HTSUS. We

disagree.

The principle use of the pitchers, carafes, and bowls at the

time of importation is to hold food material. In several

instances, the brochure names these articles \"salad bowls\",

\"kool-aid pitchers\", and \"carafes\". Though they might sometimes

be used for decorative purposes, these products belong to a class

of merchandise for glassware used for table (other than drinking

glasses) or other kitchen purposes.

Furthermore, though these articles have an aesthetically

pleasing appearance, it does not mean that they are regarded as

ornamental articles for classification purposes. The products

under consideration are clearly functional articles, not merely

decorative articles. The provision for table/kitchen glassware

(7013.39) clearly describes the merchandise. Thus, the pitchers,

carafes, and bowls are classifiable as table/kitchen glassware in

subheading 7013.39.20, HTSUS.

Finally, inasmuch as we find that the articles are not

classifiable as \"other\" glassware, whether they are colored

bubble glass is irrelevant. No provision exists for the

classification of pitchers, carafes, and bowls made of colored

bubble glass.

Drinking Glasses

The subheadings under consideration for drinking glasses

are:

7013.29.10 \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018): \[d\]rinking glasses, other than of glass

ceramics:\[o\]ther: \[o\]ther: \[v\]alued not over \$0.30

each.

7013.29.20 \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018):\[d\]rinking glasses, other than of glass-

ceramics: \[o\]ther: \[o\]ther: \[v\]alued over \$0.30

but not over \$3 each.

9902.70.15 \[d\]rinking glasses colored prior to

solidification, and characterized by random

distribution of numerous bubbles, seeds, or

stones, throughout the mass of the glass (provided

for in subheading 7013.29.10 or 7013.29.20).

Glassware classifiable under subheading 7013.29.10 or

7013.29.20, HTSUS, entered on or before 12/31/92 is subject to a

reduced rate of duty under subheading 9902.70.15, HTSUS.

\"B\", \"AB\", and \"AC\" Drinking Glasses

The drinking glasses with the \"B\", \"AB\", and \"AC\",

designations are not classifiable as colored bubble glass under

subheading 9902.70.15, HTSUS, because they do not have all the

qualities of colored bubble glass. As set forth in HRL 085094

dated 8/2/91, to be considered colored bubble glass, a product

must contain a genuine color which has been inserted into the

glass prior to solidification and be characterized by a random

distribution of numerous bubbles, seeds or stones throughout the

mass of the glass. In addition, if the glass consists of several

glass portions fused together, the presence of one uncolored

portion would preclude classification of the article as colored

glass. These articles are characterized by a random

distribution of numerous bubbles, seeds, or stones throughout the

mass of the glass, however they are not colored prior to

solidification.

According to HQ 085094, both C.I.E. 1070/66 dated 4/12/66

\[T.D. 66-23 (7)\] and HQ 043600 dated 2/26/76 dealt with the scope

of item 546.35, Tariff Schedule of the United States (TSUS).

Item 546.35, TSUS, was the precursor to subheading 7013.99.10,

HTSUS, which, as cited above, provides for glassware which is

colored bubble glass. According to these rulings, the words

\"colored prior to solidification\" require that the entire article

be composed of glass colored while in the molten state. If the

article consists of several glass portions fused together, the

presence of one uncolored portion would exclude the article from

being considered colored glass.

A letter dated 9/15/92 from the manufacturer of the

articles, indicated that old broken glass with a green tint is

melted to a molten state. The \"B\" and \"AB\" glasses are made

solely of this glass and \"AC\" glasses are created by making the

body with this green tinted glass and adding a solid blue rim and

base. The solid blue glass is created by adding a coloring agent

when the glass is in a molten state.

In our opinion, merchandise produced from recycled glass

which has not been colored while in its most recent molten state

is not considered glass colored prior to solidification and

therefore not colored bubble glass. Although the glass might

have been colored once and then solidified, no new coloring

agents were added to the glass while it was in its latest molten

state. Furthermore, the pictures in the brochure indicate that

all of the drinking glasses with the \"B\", \"AB\", and \"AC\"

designations are not solidly colored throughout the mass of the

glass, but rather have no color or only have colored rims and

bases. These glasses are classifiable in either subheading

7013.29.10, HTSUS, or subheading 7013.29.20, HTSUS, depending

upon their value.

\"C\" Glasses

It is our opinion that the drinking glasses with the \"C\"

designation are classifiable in subheading 9902.70.15, HTSUS.

It would appear from the brochure that these articles are solidly

colored throughout the mass of the glass and have numerous

bubbles. A letter dated 9/15/92 from the manufacturer indicates

that glass is melted into a molten state and then\... \[i\]f color

is desired, the coloring agent is added at the start of this

melting process; the colored glass is then molten at the time of

its use. This indicates to us that the glass is colored prior to

solidification. In addition, the pictures in the brochure

indicate that \"C\" glasses have numerous bubbles throughout the

mass of the glass. These drinking glasses are classifiable under

subheading 9902.70.15, HTSUS.

Vases

The following subheadings under consideration for vases are:

7013.99.40 \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018): \[o\]ther glassware: \[o\]ther: \[o\]ther:

\[o\]ther: \[v\]alued not over \$0.30 each.

7013.99.50 \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018): \[o\]ther glassware: \[o\]ther: \[o\]ther:

\[o\]ther: \[v\]alued over \$0.30 but not over \$3 each.

7013.99.10 \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018): \[o\]ther glassware: \[o\]ther: \[g\]lassware

decorated with metal flecking, glass pictorial

scenes or glass thread- or ribbon-like effects,

any of the foregoing embedded or introduced into

the body of the glassware prior to its

solidification; millefiori glassware; glassware

colored prior to solidification, and characterized

by random distribution of numerous bubbles, seeds,

or stones, throughout the mass of the glass.

\"AC\" and \"B\" Vases

The \"AC\" vases have a body of recycled green tinted glass

and a rim and base of solid blue glass. The \"B\" vases are made

solely of recycled green tinted glass. In a letter dated 3/26/93

the manufacturer indicates that some of the colors of the

articles in question are a by-product of the use of recycled

glass. The pictures in the brochure indicate that vases with a

\"AC\" designation use this recycled glass in their production.

Because the recycled glass is not considered colored prior to

solidification, as discussed above, vases with an \"AC\"

designation are not considered colored bubble glass.

Although no picture of \"B\" vases appear in the brochure, it

appears that \"B\" designated glass products are solely made from

recycled glass. Therefore, they are not classifiable as colored

bubble glass.

Use of recycled glass which has not been colored prior to

solidification precludes these articles from classification under

subheading 7013.99.10, HTSUS. The \"AC\" and \"B\" vases are not

colored bubble glass. Therefore, they are classifiable under

either subheading 7013.99.40, HTSUS, or subheading 7013.99.50,

HTSUS, depending on their value.

\"BA\" and \"C\" Vases

These vases are classifiable under subheading

7013.99.10,HTSUS, because they meet the definition for colored

bubble glass described in HQ 089054. The brochure indicates that

the entire mass of the \"BA\" and \"C\" designated vases are colored

and that there are numerous bubbles throughout the mass of the

glass. Furthermore, in a letter dated 9/15/92, the manufacturer

indicates that in some instances colored glass is created by

adding a coloring agent prior to solidification. It appears from

the information in the file that a blue coloring agent was added

to the glass used to create the \"BA\" and \"C\" designated vases

prior to solidification.

HOLDING:

The subject candleholders are classifiable in subheading

9405.50.40, HTSUS, dutiable at the rate of duty is 7.6 percent ad

valorem.

The pitchers, bowls, and carafes in question are

classifiable in subheading 7013.39.20, HTSUS, dutiable at the

rate of 30 percent ad valorem.

Drinking glasses with the \"B\", \"AB\", or \"AC\" designations

are classifiable in subheading 7013.29.10, HTSUS, or subheading

7013.29.20, HTSUS, depending on the value of the glasses. The

duty rate for subheading 7013.29.10, HTSUS, is 38 percent ad

valorem and the duty rate for subheading 7013.29.20, HTSUS, is

30 percent ad valorem.

Drinking glasses with the \"C\" designation are classifiable

in subheading 9902.70.15, HTSUS, dutiable at 20 percent ad

valorem.

Vases with the \"AC\" and \"B\" designations are classifiable in

subheading 7013.99.40, HTSUS, or subheading 7013.99.50, HTSUS,

depending on their individual value. The duty rate is 38 percent

ad valorem for articles classifed under subheading 7013.90.40,

HTSUS. Articles classifiable under subheading 7013.99.50, HTSUS,

are dutiable at 30 percent ad valorem.

Vases with the \"BA\" or \"C\" designation are classifiable in

subheading 7013.99.10, HTSUS, with duty at the rate of 20 percent

ad valorem.

You are instructed to deny the protest, except to the extent

reclassification of the merchandise as indicated above results

in a net duty reduction and partial allowance.

A copy of this decision should be attached to the Customs

Form 19 and provided to the protestant as part of the notice of

action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings