HQ 960499

July 8, 1998

CLA-2 RR:CR:GC 960499 PH

CATEGORY: Classification

TARIFF NO.: 7013.99.50; 9405.50.40

Port Director

U.S. Customs Service

Post Office Box 3130

Laredo, Texas 78044

RE: Protest 2304-96-100035; caged glass; glassware with glass

blown into metal framework; candle holder; glassware for

table, kitchen, toilet, office, indoor decoration; principal

use; basket provision; essential character; composite good;

GRI 3(b); U.S. Additional Note 1(a); ENs 70.13; 70.06;

70.09; United States v. Carborundum Co., 63 CCPA 98 (1976);

Great Western Sugar Co. v. United States, 59 CCPA 56 (1971);

Better Home Plastics Corp. v. United States, 916 F. Supp.

1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997);

(Apex Universal, Inc., v. United States, CIT Slip Op. 98-69;

HQs 951126; 956810; 957127; 960475; NY 894791

Dear Port Director:

This is our decision on protest 2304-96-100035, against your

classification under the Harmonized Tariff Schedule of the United

States (HTSUS) of certain glassware blown into metal frames and a

glass \"MACETA\" (flower pot). Samples were provided. In

preparing this decision, consideration was also given to

supplemental submissions dated April 9 and July 14 and 18, 1997,

from counsel for the protestant.

FACTS:

Sixteen entries are protested. The entries were filed in

September and October of 1995. The entries were liquidated

between December of 1995 and February of 1996, with classifica-tion of
the merchandise under consideration in subheading

MX7013.39.20, HTSUS (qualification of the goods as goods of

Mexico subject to North American Free Trade Agreement (NAFTA)

treatment is not at issue and is not considered in this ruling).

The importer\'s counsel filed this protest with Customs on

February 22, 1996, against the classification of all articles

described with the terms \"TULIPAN\", \"CARCEL\", BARRIL\",

\"CALABAZA\", \"CALAVAZA\", \"TAZON\", or \"MACETA\". In a July 18,

1996, supplemental submission, the protestant listed the articles

subject to protest; \"CALAVAZA\" is not listed. The articles may

be described as follows:

TULIPAN Tulip series, heavy drinking glass shape, blown

into iron frame so that glass bulges in openings

and may not be removed without damage to frame or

glass; small (sample) has a 3 3/4\" top diameter, 2

1/8\" base diameter, and 4\" height; medium is

described as 5 1/8\" X 5 1/2\" (H); large as 4 3/4\"

X 9\" (H); available in clear and frosted white.

CARCEL or Column series, flat base with cylinder shape,

BARRIL blown into iron frame so that glass bulges in

openings and may not be removed without damage to

frame or glass; medium (sample) has a 4 3/4\" top

and base diameter and 6\" height; small is

described as 3 1/4\" X 3 1/2\" (H); large as 4\" X 9

1/2\" (H); available in clear and frosted white.

CALABAZA Gourd series, pumpkin shape, blown into iron frame

so that glass bulges in openings and may not be

removed without damage to frame or glass; small

(sample) has a 3\" top diameter, 3\" base diameter,

approximate 5\" width at midpoint, and 3 1/2\"

height; medium is described as 6\" X 10\"; large as

7\" X 12\"; available in clear and frosted white.

TAZON Cup series, bowl shape, blown into iron frame so

that glass bulges in openings and may not be

removed without damage to frame or glass; medium

(sample) has a 7\" top diameter, 3 1/2\" base

diameter, and 5 1/2\" height; small is described as

4 1/4\" X 3 1/2\"; large as 9 1/2\" X 5 1/2\";

available in clear and frosted white.

MACETA Flower pot shape, without iron framework, medium

(sample in HQ 960475; see below) 5 1/2\" top

diameter X 5 1/2\" (H).

In regard to the articles described with the term \"MACETA\",

the protestant refers to another protest in which classification

of this article was contested (protest 2304-95-100241;

Headquarters Ruling (HQ) 960475 dated June 30, 1998) and asks

that action on the articles so denominated await action on that

protest. In HQ 960475, we held that a medium-sized \"MACETA\"

(flower pot) was classified as other glassware of a kind used for

indoor decoration or similar purposes, valued over \$0.30 but not

more than \$3 each, in subheading 7013.99.50, HTSUS. We stated

that New York Ruling (NY) 894791 dated March 15, 1994, holding

that a small \"MACETA\" was classifiable as a candle holder in

9405.50.40, HTSUS, remains in effect. Consistent with these

rulings and the LAW AND ANALYSIS portion of HQ 960475, a large

\"MACETA\" is classifiable in subheading 7013.99.50, HTSUS. HQ

960475, issued to you in regard to a protest by the same

protestant as in this case, is incorporated by reference into

this ruling, and the protest is DENIED insofar as medium and

large articles described with the term \"MACETA\" are concerned.

In regard to the remaining articles (called \"caged glass

articles\" by the protestant), the protestant states that the

articles consist of \"wrought iron forms into which glass has been

blown, with the glass extending through the openings in the iron

frames, thus making the iron and glass inseparable.\" The

protestant states that the articles are sold by the importer as

candle holders, although they can be used in a number of ways.

Citing General Rule of Interpretation (GRI) 3(b), the

protestant contends that because the iron frames dictate the

shape of the articles and provide support for the glass, the

glass plays \"somewhat of a lesser role in the appearance of the

overall article.\" The protestant states that the iron also

provides \"the rustic nature of the article, which is a major

selling point.\" Therefore, the protestant contends that the

articles should be classified as if they consisted of wrought

iron, under subheading 7323.99.90, HTSUS, or, alternatively,

7326.90.85, HTSUS.

If the essential character of the caged articles is

determined to be derived from the glass component, the protestant

contends that, on the basis that Harmonized Commodity Description

and Coding System Explanatory Note (EN) 70.13 provides that

articles of glass combined with other materials are classified in

heading 7013 only if the glass gives the whole the character of

glass articles, classification in heading 7013 is precluded and

should be under heading 7020.

As a third alternative, the protestant contends that no

principal use of the articles has been established and, in the

absence of a principal use, GRI 3(c), providing for

classification under the heading which occurs last in numerical

order among those which equally merit consideration, requires

classification under heading 9405.

The subheadings under consideration are as follows:

7013.39.20 Glassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar purposes (other than that
of heading 7010 or 7018): \... 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 1995 general column one rate of duty for goods classifiable

under this provision is 29.2% ad valorem; that for goods of

Mexico qualifying for NAFTA treatment is 26% ad valorem.

7013.99.50 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 1995 general column one rate of duty for goods classifiable

under this provision is 30% ad valorem; that for goods of Mexico

qualifying for NAFTA treatment is 26% ad valorem.

7020.00.00 Other articles of glass.

The 1995 general column one rate of duty for goods classifiable

under this provision is 6.3% ad valorem; goods of Mexico

qualifying for NAFTA treatment are duty-free.

7323.99.90 Table, kitchen or other household articles and

parts thereof, of iron or steel; \...: Other: \...

Other: \... Not coated or plated with precious

metal: \... Other.

The 1995 general column one rate of duty for goods classifiable

under this provision is 3.4% ad valorem; goods of Mexico

qualifying for NAFTA treatment are duty-free.

7326.90.85 Other articles of iron or steel: \... Other: \...

Other: \... Other.

The 1995 general column one rate of duty for goods classifiable

under this provision is 5.1% ad valorem; goods of Mexico

qualifying for NAFTA treatment are duty-free.

9405.50.40 Lamps and lighting fittings including searchlights

and spotlights and parts thereof, not elsewhere specified or included
\...: \...

Non-electrical lamps and lighting fittings: \...

Other: \... Other.

The 1995 general column one rate of duty for goods classifiable

under this provision is 7.3% ad valorem; goods of Mexico

qualifying for NAFTA treatment are duty-free.

ISSUE:

Whether the glassware is classifiable as glassware of a kind

used for table or kitchen purposes in subheading 7013.39.20,

HTSUS, glassware of a kind used for indoor decoration or similar

purposes in subheading 7013.99.50, HTSUS, other articles of glass

in subheading 7020.00.00, HTSUS, other table, kitchen or other

household articles of iron or steel in subheading 7323.99.90,

HTSUS, other articles of iron or steel in subheading 7326.90.85,

HTSUS, or other non-electrical lamps and lighting fittings in

subheading 9405.50.40, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e.,

within 90 days after but not before the notice of liquidation;

see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is

protestable (see 19 U.S.C. 1514(a)(2) and (5)).

Merchandise is classifiable under the Harmonized Tariff

Schedule of the United States (HTSUS) in accordance with the

General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not

require otherwise, according to GRIs 2 through 6. Pursuant to

GRI 3(b), when goods are prima facie classifiable under two or

more headings, classification shall be effected as follows:

\(b\) Mixtures, composite goods consisting of different

materials or made up of different components, and goods put

up in sets for retail sale, which cannot be classified by

reference to 3(a) \[by reference to the heading which

provides the most specific description\], shall be classified

as if they consisted of the material or component which

gives them their essential character, insofar as this

criterion is applicable.

Under GRI 3(c), when goods cannot be classified by reference to

GRI 3(a) or (b), they shall be classified under the heading which

occurs last in numerical order among those which equally merit

consideration.

The Harmonized Commodity Description and Coding System

Explanatory Notes (ENs) constitute the official interpretation of

the Harmonized System. While not legally binding on the

contracting parties, and therefore not dispositive, the ENs

provide a commentary on the scope of each heading of the

Harmonized System and are thus useful in ascertaining the

classification of merchandise under the System. Customs believes

the ENs should always be consulted. See T.D. 89-80, published in

the Federal Register August 23, 1989 (54 FR 35127, 35128).

The \"caged glass\" articles are composite goods (see EN Rule

3(b)(IX), \"\... composite goods made up of different components

shall be taken to mean not only those in which the components are

attached to each other to form a practically inseparable whole

\...\"). Thus, under GRI 3(b), classification of the articles is

determined on the basis of the component which imparts the

essential character. EN Rule 3(b)(VIII) lists as factors to help

determine the essential character of goods the nature of the

material or component, its bulk, quantity, weight or value, or

the role of a constituent material in relation to the use of the

goods.

Recently, there have been several decisions by the Court of

International Trade (CIT) on \"essential character\" for purposes

of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F.

Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997),

involved the classification of shower curtain sets, consisting of

an outer textile curtain, inner plastic magnetic liner, and

plastic hooks. The Court looked to the role of the constituent

materials in relation to the use of the goods and found that,

even though the relative value of the textile curtain was greater

than that of the plastic liner and the textile curtain also

served protective, privacy and decorative functions, because the

plastic liner performed the indispensable function of keeping

water inside the shower, the plastic liner imparted the essential

character upon the set. See also Mita Copystar America, Inc. v.

United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing

and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and

Vista International Packaging Co., v. United States, 19 CIT 868,

890 F. Supp. 1095 (1995), in which the Court also looked to the

role of the constituent material in relation to the use of the

goods to determine essential character.

For the caged glass articles, the \"indispensable function\"

is holding or containing whatever is put in them, whether

candles, flowers, or anything else. The component which performs

that function is clearly the glass component, regardless of

whether, as argued by the protestant, the iron frame component

may dictate the shape of the composite article and provide

support for the glass (see, e.g., HQ 951126 dated May 12, 1992,

explaining and distinguishing various rulings on the

applicability of GRI 3(b) to articles of glass and metal). We

conclude that the essential character of the caged glass articles

is given by the glass component.

Accordingly, the caged glass articles must be classified as

if they consisted of glass, and classification in subheading

7323.99.90 or 7326.90.85, HTSUS, is precluded. Subheading

7020.00.00, HTSUS, is a so-called \"basket\" provision, in which

classification \"is appropriate only when there is no tariff

category that covers the merchandise more specifically\" (Apex

Universal, Inc., v. United States, CIT Slip Op. 98-69 (May 21,

1988)) (this is also true of subheading 7326.90.85, HTSUS,

discussed above). Therefore, we are first addressing the other

competing provisions. Only if classification in one of these

provisions is precluded will we address classification in

subheading 7020.00.00, HTSUS.

Subheadings 7013.39.20, 7013.99.50, and 9405.50.40, HTSUS,

as applicable to the merchandise under consideration, are

controlled by use (other than actual use) (see Group Italglass

U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866

(1993); E.M. Chemicals v. United States, 923 F. Supp. 202 (CIT

1996); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20,

25, 748 F.2d 663 (1984)). In such provisions, articles are

classifiable according to the use of the class or kind of goods

to which the articles belong. If an article is classifiable

according to the use of the class or kind of goods to which it

belongs, Additional U.S. Rule of Interpretation 1(a), HTSUS,

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.

In other words, 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 (principal use is

distinguished from actual use; a tariff classification controlled

by the latter is satisfied only if such use is intended at the

time of importation, the goods are so used and proof thereof is

furnished within 3 years after the date the goods are entered

(U.S. Additional Note 1(b); 19 CFR 10.131 - 10.139)).

The Courts have provided factors, which are indicative but

not conclusive, to apply when determining whether merchandise

falls within a particular class or kind. They include: general

physical characteristics, expectation of the ultimate purchaser,

channels of trade, environment of sale (accompanying accessories,

manner of advertisement and display), use in the same manner as

merchandise which defines the class, economic practicality of so

using the import, and recognition in the trade of this use. See

Lenox Collections v. United States, 19 CIT 345, 347 (1995);

Kraft, Inc, v. United States, 16 CIT 483 (1992), G. Heileman

Brewing Co. v. United States, 14 CIT 614 (1990); and United

States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d

373 (1976), cert. denied, 429 U.S. 979 (1976).

This office recently has exhaustively reviewed the principal

use of articles such as those under consideration (glassware in

various forms contended to be principally used as candle

holders). In the March 25, 1998, edition of the CUSTOMS

BULLETIN, Volume 32, Number 12, page 32, Customs issued a notice

under 19 U.S.C. 1625 proposing to modify or revoke two

Headquarters and five New York ruling letters, to classify the

articles described therein as other glassware of a kind used for

indoor decoration or similar purposes in subheading 7013.99,

HTSUS, instead of as candle holders in subheading 9405.50.40,

HTSUS. The comments submitted in response to this notice

provided considerable information regarding the \"pertinent

factors\" (see above) related to the principal use of the class or

kind of goods to which the goods considered in the proposed

rulings belong. Based on this information, Customs has concluded

that the class or kind for goods such as those under

consideration is defined by the form or shape of the article

(e.g., bell-shape, similar to bell-shape, flower pot shape, tulip

or flower petal shape, cube or rectangle shape, disk shape, bowl

shape, and other shapes) and its size. We have found there to be

a clear distinction between glassware used as candle holders and

that used for general indoor decoration based on the size of the

articles, in the absence of other pertinent evidence or

information. Glassware with an opening of 4 inches or less in

diameter and a height or depth of 5 inches or less is used

substantially more frequently as a candle holder than for any

other purpose, according to the information we have obtained, and

larger glassware is used substantially more frequently for

general indoor decoration.

The comments received in response to the March 25, 1998,

Customs Bulletin notice also provided considerable information

regarding the principal use of caged glass articles. We found

there to be a distinction based on size between caged glass

articles used as candle holders and those used for general indoor

decoration. The parameters of size are similar to those

described above, although for caged glass articles, glassware

with an opening of 4 inches or less in diameter and a height or

depth of 6 (instead of 5) inches or less appears to be

principally used as a candle holder, and larger glassware appears

to be principally used for general indoor decoration.

The small caged glass articles under consideration are made

of relatively thick glass blown into an iron frame and have a top

diameter of 3\" to 4\" (except the \"TAZON\", which is described as

having a top diameter of 4 1/4\") and a height of 3\" to 4\". These

articles are of a size, based on the above-described information,

which indicates their inclusion in the class or kind of goods

principally used as candle holders (in the case of the \"TAZON\",

although the top diameter is slightly larger than the above-described
size, the inside diameter of the article at its

midpoint is much smaller (approximately 2\") and the height is 3

1/2\"; furthermore, the form is similar to that frequently

displayed in use with \"votive\"-type candles). This is consistent

with the pertinent factors listed by the Courts for determining

principal use (see above). That is, in regard to physical

characteristics, the small size of the openings prevents easy

access and the combination of iron framework and glass formed

around that framework provides, in the words of advertising

literature for similar articles, \"\[a\] dramatic display for

candles\". In regard to the other pertinent factors (expectation

of ultimate purchasers; channels of trade; environment of sale;

and usage, economic practicality of such usage, and recognition

of the trade of such usage), the evidence obtained from the

public in response to the March 25, 1998, Customs Bulletin notice

supports principal use of the small caged glass articles as

candle holders. These articles are classified as non-electrical

lamps and lighting fittings in subheading 9405.50.40, HTSUS.

The medium and large caged glass articles under

consideration are made of relatively thick glass blown into an

iron frame and have a top diameter and/or height exceeding those

of the class or kind of articles we found to be principally used

as candle holders in our analysis of the information received in

response to the March 25, 1998, Customs Bulletin notice. This

also is consistent with the pertinent factors listed by the

Courts for determining principal use (see above). That is, in

regard to physical characteristics, the larger size of the

openings permits easy access; as for the appearance of the

combination of iron framework and glass formed around that

framework, advertising literature for similar larger items

describes this appearance as providing \"a fresh statement for

bigger, bolder, longer stemmed blossoms\" or \"\[a\] dramatic flower

presentation\". In regard to the other pertinent factors

(expectation of ultimate purchasers; channels of trade;

environment of sale; and usage, economic practicality of such

usage, and recognition of the trade of the such usage), the

evidence obtained from the public in response to the March 25,

1998, Customs Bulletin notice supports principal use of the

medium and large caged glass articles for indoor decoration and

not as candle holders.

The protestant contends that classification of the caged

glass articles in heading 7013 is precluded by EN 70.13. The

part of EN 70.13 relied upon by the protestant states:

Articles of glass combined with other materials (base metal,

wood, etc.), are classified in this heading only if the

glass gives the whole the character of glass articles.

Precious metal or metal clad with precious metal may be

present, as minor trimmings only; articles in which such

metals constitute more than mere trimmings are excluded

(heading 71.14).

The protestant argues that, \"\[w\]hether or not one agrees

that the essential character of \[the caged glass\] articles is

derived from the iron component, it cannot be denied that the

presence of that component prevents these articles from complying

with the note cited above\[;\] \[t\]he most that can be said is that

the whole has the character of an iron and glass article and it

cannot, therefore, be classified under \[h\]eading 70.13.\" That

is, the protestant contends that the quoted material from EN

70.13 is more restrictive than, and overrides, GRI 3(b).

We disagree with this argument. Initially, we note that

although Customs believes the ENs should always be consulted (see

T.D. 89-80, supra), they are not dispositive or binding. See,

e.g., Lynteq, Inc. v. United States, 10 Fed. Cir. (T) 112, 976

F.2d 693 (1992); Midwest of Cannon Falls, Inc. v. United States,

122 F.3d 1423 (Fed. Cir. 1997); and Winter-Wolff, Inc, v. United

States, 996 F. Supp. 1258 (CIT 1998). Generally, the Courts have

treated the ENs as non-controlling legislative history (see,

e.g., SGI, Inc. v. United States, 122 F.3d 1468, 1473 (Fed. Cir.

1997\) \"Although these Explanatory Notes are not controlling

legislative history \...\").

Adoption of protestant\'s argument would require us to ignore

the plain language of GRI 3(b) for heading 7013, on the basis of

non-controlling legislative history. A similar argument was made

in Great Western Sugar Co. v. United States, 59 CCPA 56, 452 F.2d

1394 (1971), in regard to the applicability of an item of the

Tariff Schedules of the United States (TSUS). The Court stated

that the appellants\' interpretation of legislative intent, as

evidenced by a statement of the Tariff Commission, \"cannot stand

in face of the explicit language of the statutory interpretive

rules and the clear intent of the drafters of the TSUS \...\" (59

CCPA at 60). The Court stated further:

To accept appellants\' contention that this item \[item

649.67, TSUS\] does not prevail over the provision for parts

of machinery for use in sugar manufacture would require us

to ignore the plain language of \... Headnote 1(v) \[of part 4

of schedule 6, TSUS\] and General Interpretative Rule 10(ij)

\... \[59 CCPA at 61\].

(See also, American Customs Brokerage Co. v. United States, 58

CCPA 45, 48, 433 F.2d 1340 (1970), in which the Court stated

\"\[w\]e cannot use an indication of Congressional intent alone \[a

statement from the Tariff Classification Study\] to overcome the

clear meaning of the words of a statute.\")

Similarly, in this case, the protestant\'s argument \"cannot

stand in face of the explicit language of the statutory

interpretative rules\" (i.e., GRI 3(b)); acceptance of

protestant\'s argument \"would require us to ignore the plain

language of \[GRI 3(b)\].\"

The plain language of GRI 3(b) provides that composite goods

of different materials or components shall be classified as if

they consisted of the material or component which gives them

their essential character. We have already determined that glass

gives the caged glass articles their essential character.

Therefore, under GRI 3(b), they are required to be classified as

if they consisted of glass. Consistent with the rule of

statutory construction that \"\... in construing different parts of

a tariff act which appear to be in conflict it is the court\'s

function to harmonize them so as to give each of them meaning,

and achieve a result which was reasonably within the

legislature\'s contemplation\" (Elizabeth River Terminals, Inc. v.

United States, 1 CIT 165, 174, 509 F. Supp. 517 (1981)), we

conclude that the glass in the caged glass \"gives the whole the

character of glass\", as stated in EN 70.13, by virtue of

application of GRI 3(b). Therefore, classification in heading

7013 is not precluded by the quoted statement in EN 70.13.

The above conclusion is not inconsistent with the holding in

HQ 956810 dated November 28, 1994, which was discussed at some

length by the protestant. Further, the preceding analysis is

supported by ENs 70.06 and 70.09, which respectively state that

\"serving trays consisting of a glass plate, whether or not

coloured, with a frame and handles\" and \"mirrors which have been

converted into other articles by the addition of some extra part,

e.g., certain serving trays with handles\" are classifiable in

heading 7013. The ENs make clear that the frame and handles are

of wood or metal. If the protestant\'s argument were correct,

such articles would be precluded classification in heading 7013

because, to paraphrase protestant\'s argument \"\... it cannot be

denied that the presence of \[the metal or wood frame and handle

component\] prevents these articles from complying with \[EN

70.13\]; the most that can be said is that the whole has the

character of \[a metal or wood\] and glass article \....\"

Accordingly, the medium and large articles of glassware

described as \"TULIPAN\", \"CARCEL\", \"BARRIL\", \"CALABAZA\", or

\"TAZON\" are classified as other glassware of a kind used for

indoor decoration or similar purposes in subheading 7013.99.50,

HTSUS. Although the protested entries were liquidated with

classification as glassware of a kind used for table or kitchen

purposes, in subheading MX 7013.39.20, HTSUS, EN 70.13,

describing glassware for indoor decoration as including \"vases,

ornamental fruit bowls, \... table-centres \... incense burners,

etc. \...\", makes clear that, as between subheadings 7013.39 and

7013.99, HTSUS, the caged glass articles are described by

subheading 7013.99, HTSUS. The information received in response

to the March 25, 1998, Customs Bulletin notice (described above)

also supports classification in subheading 7013.99, HTSUS, as

between subheadings 7013.39 and 7013.99, HTSUS. In this regard,

however, since the rate of duty for goods of Mexico subject to

NAFTA treatment was the same for subheadings 7013.39.20 and

7013.99.50, HTSUS, the protest is DENIED as to these articles.

HOLDINGS:

\(1\) Medium and large glassware described as \"MACETA\" is

classified as other glassware of a kind used for indoor

decoration or similar purposes in subheading 7013.99.50, HTSUS

(see HQ 960475).

\(2\) Medium and large glassware described as \"TULIPAN\",

\"CARCEL\", \"BARRIL\", \"CALABAZA\", or \"TAZON\" is classified as
other

glassware of a kind used for indoor decoration or similar

purposes in subheading 7013.99.50, HTSUS.

\(3\) Small glassware described as \"TULIPAN\", \"CARCEL\",

\"BARRIL\", \"CALABAZA\", or \"TAZON\" is classified as non-electrical

lamps and lighting fittings in subheading 9405.50.40, HTSUS.

The protest is GRANTED in part (as to small \"TULIPAN\",

\"CARCEL\", \"BARRIL\", \"CALABAZA\", and \"TAZON\" glassware) and
DENIED

in part (as to medium and large \"MACETA\",\"TULIPAN\", \"CARCEL\",

\"BARRIL\", \"CALABAZA\", or \"TAZON\" glassware). In accordance with

Section 3A(11)(b) of Customs Directive 099 3550-065, dated August

4, 1993, Subject: Revised Protest Directive, this decision

should be mailed, with the Customs Form 19, by your office to the

protestant no later than 60 days from the date of this letter.

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing of the decision. Sixty

days from the date of the decision the Office of Regulations and

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS and the public

via the Diskette Subscription Service, Freedom of Information

Act, and other public access channels.

Sincerely,

John Durant, Director,

Commercial Rulings Division