HQ 960499 - 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 - United States International Trade Commision Rulings

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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 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,

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