CLA-2 CO:R:C: 089054 NLP

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