CLA-2 RR:CR:GC 963232 BJB
Mr. David Hollywood
Mayoruna International Limited
28 South Frederick Street
Dublin 2,
Ireland
RE: "Clip Frame"; Picture Holder.
Dear Mr. Hollywood:
This is in response to your letter of August 20, 1999, to the Customs National Commodity Specialist Division, New York, regarding the tariff classification of a “clip frame” under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter on behalf of Mayoruna International Limited, along with samples, was forwarded to this office for reply. We regret the delay in responding.
FACTS:
The product is a picture holder (“holder”) consisting of a transparent glass or acrylic front, secured to a hardboard or fiberboard back (“fiberboard”), by four removable metal clips. The metal clips are marginally visible on the edge and front of the holder. The “medium density” fiberboard back has four grooves “going along each side.” Each groove is located approximately seven-eighths of an inch (7/8”) from the outer edge of the back. The metal clips fasten around the outer edges of the glass or acrylic front and clip into a groove on the fiberboard back. The samples show that the holder is designed to accommodate a picture or photograph placed on the fiberboard back, face up, with the glass or acrylic front secured over it by the hooked end of the four metal clips.
The holders are imported in several different sizes, including: 5”x7”; 7”x 10”; 8”x12”; 10”x12”; 12”x16”; 16”x20”; and 20”x28.” Each of the holders may be fitted with a glass front or an acrylic front. The 5”x7” and the 7”x10” holders are fitted with four metal clips; the 8”x12,” 10”x12,” 12”x16” and the 16”x20” holders are fitted with six metal clips; and the 20”x28” holder is fitted with eight metal clips. Each fiberboard back is cut to the same dimensions as its glass or acrylic front.
ISSUE:
What is the classification of the "clip frame"/picture holder under the HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the 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.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s 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 EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The holders are made of steel clips, wooden fiberboard or hardboard back and either a glass or acrylic front. The merchandise is made of components described under various headings of the HTSUS. The HTSUS provisions under consideration are as follows:
3924 Tableware, kitchenware, other household articles and toilet articles, of plastics:
3924.90 Other:
3924.90.55 Other
* * *
4414.00.00 Wooden frames for paintings, photographs, mirrors or similar objects
* * *
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:
* * *
7326 Other articles of iron or steel:
7326.90 Other:
Other:
Other:
7326.90.85 Other
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GRI 2(b) provides, in pertinent part, that "[a]ny 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 [and] [t]he classification of goods consisting of more than one material or substance shall be according to the principles of [GRI] 3." Pursuant to GRI 3(b), "... goods [which] are, prima facie, classifiable under two or more headings [and are] [m]ixtures, composite goods consisting of different materials or made up of different components, [or] goods put up in sets for retail sale, which cannot be classified by reference to [GRI] 3(a) [i.e., by 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 ...."
In general, essential character has been construed to mean that attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, General EN (VIII) to GRI 3(b) states that the factor which determines essential character will vary as between different kinds of goods. The EN lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of the constituent materials or components in relation to the use of the goods.
Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), aff’d 119 F.3d 969 (Fed. Cir. 1997); 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, 890 F. Supp. 1095 (CIT 1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), aff’d CAFC No. 98-1227 (March 16, 1999). Further, in Better Home Plastics, the CAFC emphasized that all of the relevant factors should be considered in an essential character analysis. The CAFC held,
“The [CIT] carefully considered all of the facts, and, after a reasoned balancing of all the facts, concluded that Better Home Plastics offered sufficient evidence and argument to overcome the presumption of correctness. The court concluded that the indispensable function of keeping water inside the shower along with the protective, privacy and decorative functions of the plastic liner, and the relatively low cost of the sets all combined to support the decision that the plastic liner provided the essential character of the sets . . .. The court’s decision did not rely solely, or even hinge, on the indispensability of the water-retaining function. The decision was substantially based on the importance of the other functions as well as the cost of the entire set.” (119 F.3d at 971).
Based on the foregoing, we have taken the position that, in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable (see, e.g., HQ 961095, dated July 20, 1998; HQ 962047, dated May 17, 1999). Specifically, with regard to essential character analyses of photograph holders like the subject merchandise, we have looked primarily to the role of the plastic or glass component.
You contend that because the metal and hardboard components are the only two constituents that are not interchangeable and are interdependent the merchandise should be classifiable according to either the metal or hardboard back. Another argument is that the metal clips impart the essential character to the article because they are the components with the most value. We disagree with your contentions that the essential character of the subject merchandise is imparted by either the metal or hardboard components.
Customs has consistently held that picture "frames" consisting of a glass or plastic front secured to a fiberboard back by four removable metal clips intended to hold photos is classifiable according to the glass or plastic component. See New York ruling ("NY") A82522, dated April 30, 1996; and NY C83983, dated February 18, 1998. It is our view that, in this instance, the glass or plastic is the most significant component of the photo holders. We note that the subject merchandise does not have an actual frame. The only metal components are the clips that hold the glass or acrylic front in place. The frameless nature of the holder emphasizes the importance of the glass or acrylic front. The transparent glass or acrylic covers and protects photographs. The quality, design and cut of the glass or acrylic make the plastic or glass indispensable to the holders. The wooden fiberboard has a secondary role as backing for the glass or acrylic front. The metal clips are merely designed to hold the glass or plastic front in place.
Furthermore, the value in this instance, we find is not determinative of an essential character finding. It is the role of the glass or plastic in relation to the use of the photo holder that is the focus of this determination. This conclusion is in line with prior Customs rulings that have found the function of glass to be more important than metal. See HQ 086166, dated April 9, 1990, which determined that although the metal (brass) represented a greater portion of the product's value than the glass, the essential character was provided by the glass because the function of the box to hold the articles was performed by the glass, not the metal. We thus find that the photo holders are classifiable as articles of glass or plastic because it is the glass or plastic that imparts the essential character to the holders. See also HQ 962187, dated March 17, 1999, holding the glass component was the primary constituent material and accomplished the indispensable function of a picture frame.
It is argued that if the merchandise is not classifiable based on the metal clips or the fiberboard, then the glass component is described by heading 7006, HTSUS. We note that EN 70.06, at page 1015, states,
“[t]his heading covers not only flat glass in the form of semi-finished products (e.g., sheets without any particular purpose), but also articles of flat glass designed for a specific purpose, subject to their being neither framed, backed, nor fitted with material other than glass. . ..”
EN 70.13, at page 1021, further states that ... "[a]rticles 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." ... It is our view that the EN's show that items which are composite articles having the essential character of glass articles are described by heading 7013. We therefore find that the merchandise is classifiable under subheading 7013.99, HTSUS. Classification at the eight (8) digit level will depend on the value of the article.
HOLDING:
The "clip frame" with a glass front is classifiable under subheading 7013.99, HTSUS, as “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:”
The “clip frame” with an acrylic or plastic front is classifiable under subheading 3924.90.55, HTSUS, as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other.”
Sincerely,
John Durant, Director
Commercial Rulings Division