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