CLA-2 CO:R:C:M 089401 DWS
District Director of Customs
300 South Ferry Street
Terminal Island
San Pedro, CA 90731
RE: Classification of Suncatchers
Dear Sir:
This is our decision on Application for Further Review of
Protest No. 2704-90-04750, dated November 20, 1990, concerning
your action in classifying and assessing duty on suncatchers
imported from Korea.
FACTS:
Suncatchers are paintings on clear glass. The suncatcher is
designed to be hung by a chain in a window, so that sunlight
coming through the window shines through and illuminates the
suncatcher.
An extensive process is involved in the creation of the
suncatchers. First, artists at Joan Baker Designs design a scene
and hand-paint the design on clear glass at their studio in San
Clemente, California. The design is then sent to Korea where it
is used by Korean craftspeople as an original for hand-painted
copies. The clear, glass shapes upon which the paintings will be
made are scored by hand with a glass cutter and broken out at the
scores by hand. The Korean craftspeople copy the painting onto
the clear glass shape. An outline of the scene is first created
by free hand, using black latex paint from small squeeze bottles.
Paint is next applied in the areas, using colors closest to the
original design sent by Joan Baker Designs. No mechanical
process is incorporated. The lead caming that constitutes the
frame is then stretched by hand, shaped around the glass and
soldered together by hand. Finally, a small chain is attached to
the suncatcher so it can be hung in a window.
ISSUES:
Whether the suncatcher is classifiable under subheading
9701.10.00, HTSUSA, which provides for paintings executed
entirely by hand?
If not, whether the suncatcher is classifiable under
subheading 7016.10.00, HTSUSA, which provides for glass smallware
for mosaics and similar decorative purposes?
If not, whether the suncatcher is classifiable under
subheading 7013.99.50, HTSUSA, which provides for glassware used
for indoor decoration?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
Counsel to the importer claims that the suncatcher is
classifiable under subheading 9701.10.00, HTSUSA, which provides
for:
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.
It is true that the suncatcher is a hand-painted article.
However, the suncatcher is also a manufactured article.
"Webster's Third New International Dictionary", Merriam-Webster
Inc., Springfield, Mass., 1986, defines manufacture as:
2a.n. The process or operation of making wares or other
material products by hand or by machinery, especially when
carried on systematically with division of labor.
The process by which the suncatcher is created fits the
definition of "manufacture". The articles are created by hand,
on a large scale, utilizing a planned division of labor. An
artist in California creates a design, a craftsperson in Korea
paints the glass piece based upon the design and another
craftsperson positions the lead caming around the glass piece.
Even though no suncatcher is exactly alike, they are produced
every year on a large scale basis. The suncatcher is clearly a
manufactured article, made by craftspersons.
Counsel for the importer claims that if the suncatcher is
manufactured, "the exception would swallow the rule. For
example, under that interpretation, a more traditional painting
on a canvas would also be considered a 'manufactured article'."
However, there is a difference between a suncatcher and a
"traditional painting". When artists come up with an idea for a
painting, they do not put the design on paper and then send it to
someone else to paint. They will paint what they have in mind,
thereby making the painting a personal expression of their
thoughts.
Also, counsel argues that the glass piece itself is not
manufactured, thereby excluding itself from a class of articles
such as hand-painted bread boxes, which do fall under the
exception. The manufactured articles exception deals with the
whole article, not just a certain part. The suncatcher in whole
form is manufactured, regardless of whether the glass piece is or
is not.
Since the suncatcher is a manufactured article, it is not
classifiable under Heading 9701, HTSUSA.
Counsel claims that if the suncatchers are not classifiable
under subheading 9701.10.00, HTSUSA, then they could be
classifiable under 7016.10.00, HTSUSA, which provides for:
Glass cubes and other glass smallwares, whether or not on a
backing, for mosaics or similar decorative purposes. It is
counsel's opinion that a suncatcher could be glass smallware
because it is glass, it is small, it is an article of merchandise
and it is used for decorative purposes. However, these
characteristics are not the only criteria.
In understanding the language of subheading 7016.10.00,
HTSUSA, the Explanatory Notes may be utilized. The Explanatory
Notes, although not dispositive, are to be used to determine the
proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128
(August 23, 1989). Explanatory Note 70.16 (p.939) provides that
"This heading covers a range of glass articles obtained by
pressing or moulding (whether or not combined with blowing)."
The glass used for the suncatchers is neither pressed nor
moulded. There is also no glassblowing involved in the creation
of the suncatchers. Articles under this subheading are generally
used as building material, architectural ornaments, facing
material for walls, lights for private homes, stained glass
windows for churches, etc. The suncatcher does not fall under
any of these categories.
The suncatcher is not classifiable under Heading 7016,
HTSUSA.
Finally, counsel claims that the suncatcher is not
classifiable under subheading 7013.99.50, HTSUSA, which provides
for:
Glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes: Other glassware:
Other: Other: Other: Valued over $0.30 but not over $3 each.
In preparing its brief, counsel gathered an impressive amount of
documentation from various "glassware retailers" who unanimously
stated that the suncatchers would never be considered
"glassware". However, the opinions of retailers concerning what
they believe is contained in the glassware universe is not
necessarily binding as to the definition of glassware for tariff
classification purposes. Counsel claims that as described in
Explanatory Note 70.13 (p.936) glassware articles are generally
"containers". That is not the case. Explanatory Note 70.13 also
describes glassware for indoor decoration that do not resemble
containers. Examples are "statuettes, fancy articles (animals,
flowers, foliage, fruit, etc., table centres, . . . and souvenirs
bearing views."
The suncatcher is used for indoor decoration and it is made
of glass. The point of the suncatcher is that light coming
through a window shines through and illuminates the glass. The
painting is mainly for decoration, but it is the glass that is
being illuminated. .
In HQ 086166, dated April 9, 1990, a similar issue as to the
classification of a suncatcher was raised. The suncatcher
described in that ruling was made of both stained and clear
glass, and brass etchings were contained within the glass itself.
Counsel for the importer argues that the subject suncatcher is
distinguishable from the suncatcher ruled upon in HQ 086166.
Counsel is correct in that the two suncatchers are
distinguishable in form, but they are not distinguishable in
purpose. It was stated in HQ 086166 that "[t]he body of each
suncatcher consists largely of glass. Although the glass
suncatchers are held together by the brass, the largest portion
of the area of each item is made of glass. Furthermore, the
effect of the suncatcher is dependent on the reflection of
sunlight off the glass. Based on function and area, the glass
represents the essential character of this merchandise.
Consequently, the suncatchers are classifiable as household
articles of glass in Heading 7013."
As can be seen, the purposes of the subject suncatcher and
the one in HQ 086166 are primarily the same. Light shines
through the glass piece, illuminating the colors placed on the
glass, regardless of whether the glass is painted or stained.
Since the suncatcher is made of glass and its use is for indoor
decoration, it is classifiable under subheading 7013.99.50,
HTSUSA
As a final alternative classification, counsel claims
heading 7020, HTSUSA, which provides for Other articles of glass.
However, because Heading 7013, HTSUSA, is more specific in its
description of the suncatcher, it is the heading under which the
suncatcher is classifiable.
HOLDING:
The suncatcher is classifiable under subheading 7013.99.50,
HTSUSA. The protest should be denied. A copy of this decision
should be attached to the Form 19, Notice of Action, and mailed
to counsel for protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division