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

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