CLA-2:RR:CR:GC 962187 AML
Joel Simon, Esquire
Serko & Simon, LLP
One World Trade Center
Suite 3371
New York, New York 10048
RE: Glass Picture Frame
Dear Mr. Simon:
This is in reference to your letter of August 7, 1998, to the Customs National Commodity Specialist Division in New York, on behalf of Russ Berrie and Company, Inc., requesting classification of a glass picture frame pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded to this office for reply. A sample was provided for our examination. We regret the delay in responding.
FACTS:
The product, identified as item # 15579, is a square, clear, textured glass picture frame which measures six inches by six inches. The outer edge of the glass is coated with a thin layer of black metal edging which serves a decorative purpose. A black plastic square, measuring three and one half inches by three and one half inches (and roughly a sixteenth of an inch thick), is glued to the center of the front of the glass. There is a scrolled design on the outer, textured portion of the glass which borders the plastic frame, made of what appears to be black plastic or epoxy, and serves a decorative purpose. On the back of the frame, centered symmetrically with the plastic frame on the front, is a three sided, metal bracket of the same dimensions as the plastic square, which holds a hinged, compressed paper backing card. The card is designed both to hold a photograph against the glass for display and as the base for the stand. Attached to the card by a hinge
is a necktie shaped appendage, constructed of the same compressed paper material as the backing card, which acts as a stand. The total cost of the article is stated to be $14.25/ dozen ($1.19 per unit).
ISSUE:
Whether the glass picture frame with plastic, metal and paper components is classified under subheading 3924.90.20, HTSUS, which provides for plastic picture frames; subheading 3926.40.00, HTSUS, which provides for other articles of plastic, statuettes and other ornamental articles; subheading 7013.99.50, HTSUS, which provides for other glassware for indoor decoration valued greater than $.30 but less than $3.00; or subheading 8306.30.00, HTSUS, which provides for photograph, picture or similar frames of base metal.
LAW and ANALYSIS:
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRI’s). 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[.]” The applicable headings and subheadings under consideration are as follows:
3924 Tableware, kitchenware, other household articles
and toilet articles, of plastics:
Tableware and kitchenware:
3924.90 Other:
3924.90.20 Picture frames.
* * * * * * * * * * * *
3926 Other articles of plastics and articles of other
materials of headings 3901 to 3914:
3926.40.00 Statuettes and other ornamental articles.
* * * * * * * * * * * *
7013 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:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not
over $3 each.
* * * * * * * * * * * *
8306 Bells, gongs and the like, nonelectric,
of base metal; statuettes and other ornaments,
of base metal; photograph, picture or similar
frames, of base metal; mirrors of base metal;
and base metal parts thereof:
8306.30.00 Photograph, picture or similar frames;
mirrors; and parts thereof.
Classification of the article cannot be determined according to the terms of GRI 1. GRI 2(b) states that “[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances [and] any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.”
The article is a good consisting of more than one material or substance. By application of GRI 2(b) (above), it is prima facie classifiable under more than one heading (3924 or 3926 or 7013 or 8306). Accordingly, classification must be made according to the principles of GRI 3.
GRI 3 states, in pertinent part:
When by application of [GRI] 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. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . , those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components . . . which cannot be classified by reference to 3(a), shall be classified by as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The headings covering the article refer to part only of the materials or substances contained in it. Therefore, under GRI 3(a), the headings must be regarded as equally specific in relation to the article, and the article must be classified as if it consisted of the material or component which gives it its essential character, pursuant to GRI 3(b).
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN V to GRI 3(a), p. 4, states in pertinent part that “when two or more headings each refer to part only of the materials contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the others. In such cases, the classification shall be determined by [GRIs] 3(b) or 3(c).” The product under consideration is one in which different materials form a practically inseparable whole. Resort then, to GRI 3(b) must be made in order to make a classification.
EN VII to GRI 3(b), p. 4, states that in “all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
The term “essential character” is not defined within the HTSUS, GRI’s or ENs. EN VIII to GRI 3(b), p. 4, gives guidance, stating that:
[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by 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) which addressed “essential character” for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 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 examined the role of the constituent materials in relation to the use of the goods and found that, although the relative value of the textile curtain was greater than that of the plastic liner, and that although the textile curtain also served protective, privacy and decorative functions, because of the fact that the plastic liner served 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.
We believe that the indispensable function of the subject picture frame is the decorative display of a photograph. The glass component is the primary constituent material which accomplishes this function, primarily by allowing a clear display of the photograph and secondarily by constituting the primary decorative element of the article. The glass is the base of the article - all other components are attached to it and serve ancillary functions. The metal bracket holds the compressed paper base and stand. The textured border contributes to the decorative function, with the metal edging and plastic design emphasizing the light refraction of the textured glass. The plastic square plays an insignificant role in the function of the product, and is of such small proportion to the whole that, although its presence requires consideration because of its aesthetic effects, it does not transmute the glass frame to a plastic frame. The product retains its basic shape and form, and remains suited for its intended use. It is the function of displaying a photograph, which is accomplished by glass, which constitutes the essential function of the product.
We note that other criteria listed in EN VIII to GRI 3(b) (bulk, quantity, weight) also lead to the conclusion that the glass component of the article imparts the essential character of the article. In regard to the fourth criterion (value), although the cost breakdown you provided indicates a greater cost for the plastic component than the glass component, the difference is relatively small. We conclude, on the basis of the cited Court decisions and EN VII to GRI 3(b), that the essential character is imparted by the glass component.
This is consistent with other rulings of this office. Headquarters Ruling Letter (HQ) 086166, dated April 9, 1990, classified glass boxes with metal channeling or framing as decorative articles of glass under 7013.99, HTSUS, by reasoning that the glass component imparted the essential character of the article. HQ 952676, dated December 29, 1992, similarly held that a glass and metal display box was classifiable in subheading 7013.99, HTSUS, because the glass component both contained the articles displayed and allowed a clear view, thereby imparting the essential character of the article.
HOLDING:
The glass picture frame (item # 15579) is classified in subheading 7013.99.50, HTSUS, which provides for: [g]lassware 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.
Sincerely,
John Durant, Director
Commercial Rulings Division