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