CLA-2 RR:CR:GC 962170 PH
Mr. Scott D. Noe
Tower Group International
821 2nd Avenue, # 1400
Seattle WA 98104-1476
RE: Suncatcher; painting executed entirely by hand; glassware
for table, kitchen, toilet, office, indoor decoration; HQs
958885; 089401; 086166
Dear Mr. Noe:
This is in reference to your request on behalf of Arctic
Circle Enterprises, Inc., to the Director, Customs National
Commodity Specialist Division, New York, N.Y., dated August 4,
1998, for a ruling as to the classification under the Harmonized
Tariff Schedule of the United States (HTSUS), of "suncatchers."
A sample was provided. Your letter was referred to this office
for reply.
FACTS:
The merchandise under consideration, referred to as
"suncatchers" because they are typically hung in a window or
doorway to catch sunlight and illuminate it, consist of a
circular piece of glass 4" in diameter with a metal rim to which
a light metal chain is attached. The glass is painted with a
green background on which there is painted a scene with a
mailbox, bird, hill, house, and yard. You state that the design
for the painting is created and hand-painted on a piece of clear
glass. This article is used as a model from which the
merchandise is made. The processes used to make the merchandise
are: 1. clear glass is hand-cut to the shape of the model; 2.
the outline of the design is painted by "freehand", using a black
latex paint; 3. paint in various colors is hand-painted in the
sections of the outlined piece of glass; and 4. a pewter rim
with chain is added by hand to the painted pieces of glass.
The HTSUS subheadings under consideration are as follows:
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 1998 general column one rate of duty for goods classifiable
under this provision is 30% ad valorem.
9701.10.00 Paintings, drawings and pastels, executed entirely
by hand, other than drawings of heading 4906 and
other than hand-painted or hand-decorated
manufactured articles; collages and similar
decorative plaques; all the foregoing framed or
not framed: Paintings, drawings and pastels.
Goods classifiable under subheading 9701.10.00 receive duty-free
treatment.
ISSUE:
Whether the "suncatchers", executed entirely by hand, are
classifiable as glassware of a kind used for indoor decoration or
similar purposes in subheading 7013.99.50, HTSUS, or paintings,
drawings and pastels in subheading 9701.10.00, HTSUS.
LAW AND ANALYSIS:
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, taken in order.
"Suncatchers" similar to those under consideration were
considered in Headquarters Ruling Letter (HQ) 958885 dated June
16, 1997. That ruling noted that in HQ 089401 dated September 4,
1991, we had stated, in effect, that even if such "suncatchers"
were painted entirely by hand, they were hand-painted
manufactured glass articles not included in subheading
9701.10.00, HTSUS. In proceedings that followed in the Court of
International Trade, Joan Baker Designs v. United States, Court
No. 92-03-00204, the Customs Service agreed with the Department
of Justice that the paintings were not painted manufactured
articles and stipulated that the painted "suncatchers" were
classified in subheading 9701.10.00, HTSUS, as paintings executed
entirely by hand. The decision in Court No. 92-03-00204 was
published without a formal opinion as an Abstracted
Classification Decision as reported in Volume 29, No. 5, of the
Customs Bulletin, dated February 1, 1995. Also, see the
Abstracted Classification Decisions for Court Numbers
92-01-00694, 93-01-00017, 93-08-00482, and 94-04-00209, as
reported in Volume 29, No. 8, of the Customs Bulletin dated
February 22, 1995.
Accordingly, because the decisions of the Court are
controlling, in HQ 958885 we held "suncatchers" like those under
consideration (executed entirely by hand) are classified in
subheading 9701.10.00, HTSUS, as paintings executed entirely by
hand. We noted that HQ 089401 was modified by operation of law
in accordance with the Court decisions cited above.
If not executed entirely by hand, the "suncatchers" would be
classified in subheading 7013.99.40, 7013.99.50, 7013.99.80, or
7013.99.90, HTSUS, depending on value (see HQ 086166 dated April
9, 1990, and the unmodified portion of HQ 089401).
HOLDING:
The "suncatchers", executed entirely by hand, are
classifiable as paintings, drawings and pastels in subheading
9701.10.00, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division