HQ 089054

August 2, 1991

CLA-2 CO:R:C: 089054 NLP

CATEGORY: Classification

TARIFF NO.: 9405.50.40; 7013.39.20; 7013.29.20; 7013.99.10

Mr. Sidney Berkowitz

Jane Products

235L Robbins Lane

Syosset, N.Y. 11791

RE: Reconsideration of Pre-Classification Review (PC) #854106;

glass candleholder; glass storage jars; drinking glasses;

colored bubble glass; subheading 7013.39.20, 7013.99.10,

7013.29.20; 9405.50.40

Dear Mr. Berkowitz:

This is in response to your letters, dated December 27, 1990

and February 15, 1991, requesting the reconsideration of the

classifications under the Harmonized Tariff Schedule of the

United States Annotated (HTSUSA) of various glassware in PC

#854106, dated July 25, 1990. Samples were submitted for our

examination.

FACTS:

A description of the articles at issue, along with their

previous classification, is as follows:

Candleholders

Item Numbers

2054 Votive Candleholder 7013.39.2000

2086 Faceted Votive Holder \" \" \"

Cobalt Blue Storage Articles

Item Numbers

2025 Square Apothecary Jar 7013.39.2000

2026 Round Apothecary Jar \" \" \"

2027 Square Spice Bottle \" \" \"

2028 Square Spice Bottle \" \" \"

2029 Square Spice Jar \" \" \"

2030 Urn Shaped Spice Jar \" \" \"

2031 Fluted Bell Shape Bottle \" \" \"

2032 Pitcher Vase \" \" \"

2044 Grape Cruet \" \" \"

2063 Cobalt Square Spice Bottle \" \" \"

2064 Belly Spice Bottle \" \" \"

2083 Cobalt Square Spice Bottle \" \" \"

2084 Cobalt Round Spice Bottle \" \" \"

Spanish Drinking Glasses

Item Numbers

2055 Brandy Snifter 7013.29.2000

1852 Three Finger Glass \" \" \"

Old Fashioned

1927 Three Finger Glass, Hiball \" \" \"

146 Tankard, Victorian Shape \" \" \"

1204 Glass on Base \" \" \"

1934 Martini/Margarita Glass \" \" \"

2004 Jumbo Bowl Glass \" \" \"

2006 Footed Mug \" \" \"

2007 Perrier Glass \" \" \"

2009 Footed Desert/Candy/Margarita \" \" \"

2010 Tall Pilsner \" \" \"

2011 Square Round Hiball \" \" \"

2012 Square Round Double Old \" \" \"

Fashioned

2013 Roberto Double Old Fashioned \" \" \"

2014 Roberto Hiball \" \" \"

2015 Old Fashion Beer/Soda Glass \" \" \"

2016 Footed Pilsner Glass \" \" \"

1985 Grande Country Belle \" \" \"

1986 Balloon Wine Glass \" \" \"

1987 Grande All Purpose \" \" \"

1988 Cordial \" \" \"

1883 Wine Glass, Footed \" \" \"

1884 All Purpose Glass, Footed \" \" \"

1885 Country Belle \" \" \"

1925 Snaps Glass/Bud Vase \" \" \"

1932 Footed Goblet \" \" \"

1934 Martini Glass \" \" \"

1935 Handled Beer Stein \" \" \"

1975 Flute Champagne \" \" \"

1976 Hexagon Juice Glass \" \" \"

1977 Hexagon Tumbler \" \" \"

1979 Beer Stein \" \" \"

The importer argues that the votive holders are principally

used as candleholders and should be classified in subheading

9405.50.4000, HTSUSA, which provides for non-electrical lamps and

light fittings, other, other. Furthermore, the importer contends

that the cobalt blue storage articles are bubble glass and their

principal use is ornamental and decorative. They are sometimes

filled with bath salts, bath crystals, etc. These products

should be classified in subheading 7013.99.10, HTSUSA, which

provides for glassware of a kind used for\...toilet, office,

indoor decoration or similar purposes\...other glassware, other,

glassware colored prior to solidification, and characterized by

random distribution of numerous bubbles, seeds or stones,

throughout the mass of the glass.

The importer agrees that the Spanish drinking glasses are

classifiable in subheading 7013.29.2000, HTSUSA, which provides

for drinking glasses, other than of glass-ceramics, other, other,

valued over \$.30 but not over \$3 each. However, he contends that

the drinking glasses are eligible for a reduced rate of duty

under subheading 9902.70.15, HTSUSA, since they are colored prior

to solidification and are characterized by random distribution of

numerous bubbles, seeds or stones, throughout the mass of glass.

ISSUE:

Are the glass candleholders classified in subheading

9405.50.40, HTSUSA.

Are the cobalt blue glass storage articles classified in

subheading 7013.39.20, HTSUSA, or in subheading 7013.99.10,

HTSUSA.

Are the Spanish drinking glasses eligible for a reduced rate

of duty under subheading 9902.70.15, HTSUSA.

LAW AND ANALYSIS:

Candle Holders- Jane Products\' Items 2054 and 2086

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

light fittings. The Explanatory Notes (ENs) to Heading 9405,

HTSUSA, page 1581, state that lamps and light fittings of this

group can be composed of any material and use any source of

light, including candles. In addition, the ENs to Heading 9405,

HTSUSA, state that this heading covers \"in particular candelabra

and candlesticks.\" Since the instant candleholders are similar

to candlesticks and are used as candleholders, we would classify

the instant items in subheading 9405.50.40, HTSUSA, which

provides for non-electrical lamps and light fittings, other,

other.

Cobalt blue storage articles- Jane Products\' Items 2025-2032,

2044, 2063, 2064, 2083-2084

The General Rules of Interpretation (GRI\'s) set forth the

manner in which merchandise is to be classified under the HTSUSA.

GRI 1 requires that classification be determined first according

to the terms of the headings of the tariff and any relative

section or chapter notes and, unless otherwise required,

according to the remaining GRI\'s, taken in order.

The two competing subheadings for the storage articles are

the following:

7013.39.20 glassware of a kind used for table,

kitchen, toilet, office, indoor

decoration or similar purposes:

glassware of a kind used for table

(other than drinking glasses) or

kitchen purposes other than that

of glass-ceramics: other: other:

valued not over \$3 each

7013.99.10 glassware of a kind used for table,

kitchen, toilet, office, indoor

decoration or similar purposes:

other glassware: other: \...glassware

colored prior to solidification,

and characterized by random

distribution of numerous bubbles,

seeds or stones, throughout the mass

of the glass.

GRI 3 governs the classification of goods which are prima

facie classifiable within two or more headings. GRI 3(a) states

the following:

When, by application of rule 2(b) or for any other reason,

goods are prima facie, classifiable under two or more

headings, classification shall be effected as follows:

\(a\) The heading which provides the most specific

description shall be preferred to headings providing a

more general description.

In your letter of December 27, 1990, you contend that items

2025-2030, 2083-2084, 2063-2064, 2031-2032 and 2044 are

decorative or ornamental household articles used to hold bath

salts, bath crystals and other materials. Therefore, you contend

that this merchandise is classifiable as other glassware for

indoor decoration in subheading 7013.99.10, HTSUSA. In fact,

these articles are principally used to hold food material. The

products are described in Jane Products\' literature as spice

jars, spice bottles, cruets, and a pitcher vase. Moreover, the

shapes and designs of these items (as well as their names)

indicate that the merchandise is used to hold spices, vinegar,

sugar and other food material. Though they might sometimes be

used to hold bath crystals, etc.., these types of products are

primarily used to hold food material.

Furthermore, though these items 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 storage articles, not

merely decorative articles. The provision for table/kitchen

glassware (7013.39) clearly describes the merchandise in a more

specific manner than the provision which covers other glassware.

Thus, the instant storage articles are classifiable as

table/kitchen glassware in subheading 7013.39, HTSUSA.

Moreover, subheading 7013.99.10, HTSUSA, could not apply to

this merchandise because these items do not contain numerous

bubbles, seeds or stones located throughout the mass of the

glass. C.I.E. 1070/66, dated April 12, 1966 \[T.D. 66-23(7)\] and

HRL 043600, dated February 26, 1976, dealt with the issue of the

scope of item 546.35, Tariff Schedules of the United States

(TSUS), the precursor to subheading 7013.99.10, HTSUSA, which

provided for glassware, colored prior to solidification and

characterized by random distribution of numerous bubbles, seeds

or stones, throughout the mass of the 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. In addition, 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.

In addition, these rulings held that the word \"random\"

requires that the distribution of the bubbles, seeds or stones,

be haphazard, uncontrolled and numerous. These rulings also

indicate that glass products containing fining agents, which

limit the quantity of bubbles, seeds or stones in glassware, may

not be classified as bubble glass. Therefore, even if some

bubbles or seeds remain, the presence of fining agents negates

the possibility of regarding the merchandise as bubble glass.

In order to be classified as colored bubble glass in

subheading 7013.99.10, HTSUSA, a product must be colored prior to

solidification and is characterized by random distribution of

numerous bubbles, seeds or stones throughout the mass of the

glass. The instant articles are colored prior to solidification.

However, they are not characterized by a random distribution of

bubbles, seeds, or stones throughout their masses. In addition,

the Customs laboratory has indicated that the cobalt blue items

produced by La Pesa, Italy, contain antimony and arsenic oxides,

which are used as fining agents to prevent the formation of

bubbles, seeds or stones. Thus, the instant storage article

could not have been classified as colored bubble glass in

subheading 7013.99.10, HTSUSA.

Spanish drinking glasses- Jane Products Items 2055, 1852, 1927,

146, 1204, 1934, 2004, 2006, 2007, 2009-2016, 1985, 1986-1988,

1883-1885, 1925, 1932, 1934, 1935, 1975-1977 and 1979

In your letter of February 15, 1991, you requested that all

the Spanish drinking glasses covered by PC #854106 be classified

in subheading 9902.70.15, HTSUSA, which provides a reduced rate

of duty for drinking glasses, classified in subheading

7013.29.20, HTSUSA, that are colored prior to solidification, and

characterized by random distribution of numerous bubbles, seeds

or stones, throughout the mass of glass.

In letters dated April 26, 1990 and October 3, 1990,

Fabrilglass, the Spanish manufacturer of the drinking glasses,

offers an explanation of the production process of the glasses.

The letters state that the factory buys old glass and broken

bottles. In addition, the letters state that Fabrilglass only

buys clear glass or green glass. They put all this glass in the

oven and it becomes liquid because of the temperature.

Furthermore, to get the green color the temperature must be

controlled 24 hours a day. Therefore, the glasses get a light

green tint because of the production process applied to form the

glasses.

In order to be considered colored glass, a product must

contain a genuine color which has been inserted into the glass

prior to solidification. 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. In the instant case, no genuine color has been

inserted into the glass prior to solidification and the glasses

are formed by the combination of green and clear glass. As a

result, the instant drinking glasses cannot be considered colored

glass.

Moreover, in examining these glasses, we found that,

although the samples do contain some bubbles, they do not contain

numerous bubbles. Accordingly, these glasses are not

\"characterized by the random distribution of numerous bubbles,

seeds or stones, throughout the mass of the glass.\" The drinking

glasses are classified in subheading 7013.29.20, HTSUSA, but they

are not eligible for a reduced rate of duty under subheading

9902.70.15, HTSUSA.

HOLDING:

The subject candleholders are classified in subheading

9405.50.40, HTSUSA, which provides for non-electrical lamps and

light fittings, other, other. The rate of duty is 7.6 percent ad

valorem.

The storage articles in question are classified in

subheading 7013.39.20, HTSUSA, which provides for glassware of a

kind used for table, kitchen, toilet, office, indoor decoration

or similar purposes, glassware of a kind used for table (other

than drinking glasses) or kitchen purposes other than that of

glass-ceramics, other, other, valued not over \$3 each. The

rate of duty is 30 percent ad valorem.

The drinking glasses at issue are classified in subheading

7013.29.20, HTSUSA, which provides for drinking glasses, other

than of glass-ceramics, other, other, valued over \$0.30 but not

over \$3 each. The rate of duty is 30 percent ad valorem. These

glasses are not eligible for a reduced rate of duty under

subheading 9902.70.15, HTSUSA, as they are not colored prior to

solidification and they do not have a random distribution of

numerous bubbles, seeds, or stones, throughout the mass of the

glass.

PC #854106 is affirmed in part and modified in part.

Sincerely,

John Durant, Director

Commercial Rulings Division