CLA 2 RR:CR:GC 961004 PH
Port Director
U.S. Customs Service
4735 Oakland Street
Denver, CO 80239
RE: Protest 3307-97-100105; Suncatchers
Dear Port Director:
This is in response to protest 3307-97-100105, which pertains to the tariff classification of "suncatchers" imported by American Merchants in Asia (AMIA), under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were provided for our examination. We regret the delay.
FACTS:
Two entries, filed on January 8 and March 24, 1997 (a third entry, filed on January 22, 1997, was stricken from the protest by the protestant), are included in the protest against the classification of the merchandise, described as suncatchers, in subheading 7013.99.50, HTSUS, as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, valued over $0.30 but not over $3 each. The entries were liquidated on April 25 and July 7, 1997. On July 24, 1997, counsel for the importer filed this protest.
The protestant states that the articles are made by the following process: (1) clear plain glass is cut into the desired shape; (2) an artist draws the design onto the glass by hand; (3) each suncatcher is individually hand painted by an artist; and (4) a lead frame and chain is thereafter applied by hand to each suncatcher. In addition, a message or text is silk screened onto some of the articles.
We understand that the silk screening process may be described as follows: (1) a transparency of the textual message is prepared and a drawing of the article is used to show where the text is to be placed on the suncatcher; (2) a piece of silk-screen fabric mounted on a wood frame is coated with a light-sensitive emulsion; (3) the transparency with the textual message is placed on the silk screen; (4) the screen with the transparency affixed is placed in bright sunlight or under bright lights, so that the portion of the silk screen shielded from the light by the text remains porous for painting and the remainder is filled in and impervious to paint; (5) the transparency is removed and the silk screen is washed to remove the emulsion from the area shielded from the light by the text; (6) the suncatchers (with the designs painted on them) are laid out flat on a table and the silk screens placed over them with the text positioned where the suncatchers are to receive the message; (7) paint or ink is applied to the silk screens (over the suncatchers) by use of a hand-held plastic board which presses the paint or ink through the porous area of the screen onto the suncatcher; and (8) the silk screens are removed and the suncatchers are put in trays or on racks to dry.
Two samples were provided. Both are circular, one with a diameter of approximately 4 1/2" and the other with a diameter of approximately 6 1/2". Neither has a textual message. Each consists of a piece of glass with a floral design painted on one side of the glass and a base metal frame around the glass and a base metal chain attached to the frame.
The protestant cites the stipulated case of Joan Baker Designs, Inc. v. United States, CIT Court No. 92-03-00204, decided on January 12, 1995, and a Headquarters Ruling letter (HQ) following that case and argues that the suncatchers without silk-screened text are wholly executed by hand and should be classified in subheading 9701.10.00, HTSUS.
The protestant contends that the suncatchers with silk-screened text should be classified in heading 7020, HTSUS, as other articles of glass, and not in heading 7013, HTSUS. The protestant argues that "[s]ince the subject silk screened [s]uncatchers are not wholly executed by hand to the extent that the textual matter is created by a stencil type process, they cannot be classified under [subheading] 9701.00.00 and are therefore relegated to classification under the provision in [subheading] 7020.60.0000, HTSUS ...."
ISSUE:
Whether suncatchers painted entirely by hand without a textual message, and such suncatchers with a textual message applied by the silk screen process are classifiable as glassware of a kind used for indoor decoration or similar purposes in heading 7013, HTSUS; other articles of glass in heading 7020, HTSUS; other ornaments of base metal in heading 8306, HTSUS; or paintings executed entirely by hand in heading 9701, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (within 90 days after but not before the notice of liquidation (19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.
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. 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 1997 HTSUS headings under consideration are as follows:
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)
7020 Other articles of glass
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
9701 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
As the protestant states, in Joan Baker Designs v. United States, CIT Court No. 92 03 00204, suncatchers without any silk-screened text were classified in subheading 9701.10.00, HTSUS, as paintings executed entirely by hand, on the basis of an agreed statement of facts (see Abstracted Classification Decision for Court No. 92-03-00204 as reported in Vol. 29, No. 5, P. 46, of the Customs Bulletin, dated February 1, 1995; see also the Abstracted Classification Decisions for Court Numbers 92 01 00694, 93 01 00017, 93 08 00482, and 94 04 00209, as reported in Vol. 29, No. 8, P. 47, of the Customs Bulletin dated February 22, 1995). In HQs 958885 dated June 16, 1997, and 962170 dated September 17, 1998, we held that suncatchers like those in Joan Baker Designs, supra (i.e., executed entirely by hand; not having any silk-screened text), were classified in subheading 9701.10.00, HTSUS, and that Customs previous position (see HQ 089401 dated September 4, 1991) was modified by operation of law.
On the same basis, we hold that the suncatchers in the protested entries which were executed entirely by hand and which have NO textual message or image applied by the silk screen or similar process are classified in subheading 9701.10.00, HTSUS, as paintings executed entirely by hand.
Insofar as the suncatchers with a textual message applied by the silk screening process are concerned, we concur with the protestant that they may not be classified in heading 9701 because they are not executed entirely by hand. See EN 97.01 and The New Encyclopedia Britannica, Micropodia, vol. IX, pp. 208, 551-552 (1975), in which the "Silk screen" heading refers to stenciling, and in the "Stenciling" heading the silk screen process is described as follows: "When applied to mass-produced commercial products, such as fabrics, this process [stenciling with a silk screen or fine wire mesh] is called silk screen" and the nature of the process is described as "... forc[ing] [ink] through the open screen by the sharp rubber blade of a squeegee." In regard to the possibility that the use of the silk screen process to apply text to the suncatchers does not preclude classification as a painting executed entirely by hand on the basis of the de minimis rule, see Customs Law & Administration, by Ruth F. Sturm (3rd Ed., 1995, § 51.13); Northam Warren Corp. v. United States, 60 CCPA 117, C.A.D. 1092, 475 F.2d 647 (1973); and Bradford Industries, Inc. v. United States, 968 F. Supp. 732 (CIT 1997), affirmed, 152 F.3d 1339 (Fed. Cir. 1998). For a discussion of the applicability of these and other authorities to the silk screening of suncatchers, see HQ 961471 dated May 4, 1999.
Before considering whether heading 7013 or 7020, HTSUS, is applicable to the silk-screened suncatchers, we must determine whether they are classifiable as articles of glass in those headings, or as statuettes and other ornaments of base metal in heading 8306, HTSUS. That is, the suncatchers are goods consisting partly of glass and partly of base metal, they may not be classified solely on the basis of GRI 1, and the components of the suncatchers make up a composite good (see EN Rule 3(b)(IX)). Therefore, under GRI 3(b), classification of the suncatchers is determined on the basis of the component which gives them their essential character. EN Rule 3(b)(VIII) 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 a constituent material 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), affirmed 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, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999).
Based on the foregoing, we conclude 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. In this case, the "indispensable function" (Better Home Plastics, supra) of the article is to "catch" the sun and illuminate the illustration in the "suncatcher." Since the glass is the component that "catches" the sun to illuminate the illustration in the "suncatcher," this criterion indicates that the essential character of the good is provided by that component. Insofar as the other factors (quantity, bulk, weight, and value) are concerned, the available evidence is not definitive, but the quantity, bulk, and weight appear to support the glass component as providing the essential character of the article. We conclude that the essential character of the merchandise is provided by the glass component so that, under GRI 3(b), the suncatchers with silk-screened text are classifiable in heading 7013 or 7020, HTSUS. This is consistent with past rulings of this office (see, e.g., HQs 086166 dated April 9, 1990, 951909 dated September 29, 1992, 951460 dated January 11, 1993, 961465 dated September 22, 1998, and 961471 dated May 4, 1999).
In regard to the protestant’s contention that the suncatchers with silk screened text are classifiable in heading 7020, HTSUS, we note that heading 7020 is a so-called "basket" provision. Classification in a "basket" heading "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)). Therefore, if the suncatchers with silk screened text are "glassware" of a kind used for indoor decoration or similar purposes, in heading 7013, HTSUS, they may not be classified in heading 7020.
Protestant cites the stipulation of the Joan Baker cases, supra, as the basis for classification under heading 7020. The stated basis for that decision was an "[a]greed statement of facts" and the competing tariff headings were 7013, 9701, and/or 9405 (Customs Bulletin and Decisions, vol. 29, no. 5, p. 46, February 1, 1995; vol. 29, no. 8, p. 47, February 22, 1995). There was no consideration of heading 7020. To result in classification in heading 9701 of the suncatchers considered in those cases, the suncatchers must have been determined to be "executed entirely by hand" and no determination of whether the suncatchers were glassware or other articles of glass was necessary. Accordingly, these cases are not controlling of the issue of whether suncatchers not executed entirely by hand are classified in heading 7013 or 7020, HTSUS.
In regard to the question of whether the suncatchers with silk screened text are "glassware", we note that in Los Angeles Tile Jobbers, Inc. v. United States, 63 Cust. Ct. 248, C.D. 3904 (1969), the Court stated that "all articles of glass are generally defined as ‘glassware’" (63 Cust. Ct. at 250; citing Webster’s Third new International Dictionary (1968); see also Webster’s New World Dictionary, Third College Edition, at 573 (1988), defining "glassware" as "articles made of glass"). (The Court in Los Angeles Tile Jobbers commented that to call the "knockdown mosaic", consisting of small multi-colored glass cubes attached to a paper backing, "glassware" "offends ordinary sensibilities" because it "is not a shaped article" (63 Cust. Ct. at 253). The knock-down mosaics in Los Angeles Tile Jobbers are distinguished from suncatchers because the suncatcher is a shaped article.)
EN 70.13 supports inclusion of the suncatchers with silk screened text within the term "glassware" as used in heading 7013, HTSUS. The exemplars of office glassware and glassware for indoor decoration provided in EN 70.13 include paperweights, book ends, pen-trays, ashtrays, statuettes, table-centres, and souvenirs bearing views, as well as decorative articles in the form of mirrors but which cannot be used as mirrors due to the presence of printed illustrations. The suncatchers are ejusdem generis with these exemplars (see Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994), "[a]s applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms"). The essential characteristics or purposes of the above listed exemplars are that they are of glass and they are decorative. The suncatchers share these essential characteristics or purposes.
The suncatchers with silk screened text are classified as other glassware of a kind used for indoor decoration or similar purposes, valued over $0.30 but not over $3 each, in subheading 7013.99.50, HTSUS. Accordingly, they may not be classified in the so-called "basket" provision of heading 7020, HTSUS.
HOLDINGS:
(1) Suncatchers executed entirely by hand (having no text or image of any kind applied by a silk screen or similar process) are classifiable as paintings, drawings and pastels in subheading 9701.10.00, HTSUS.
(2) Suncatchers painted entirely by hand with a textual message applied by a silk screen process are classifiable as other glassware of a kind used for indoor decoration or similar purposes, valued over $0.30 but not over $3 each, in subheading 7013.99.50, HTSUS.
The protest should be ALLOWED in part (as to the suncatchers executed entirely by hand without silk screened text) and DENIED in part (as to the suncatchers with silk screened text or otherwise not executed entirely by hand). In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director,
Commercial Rulings Division