CLA-2 RR:CR:GC 962066 PH
Louis S. Shoichet, Esq.
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036-8901
RE: Suncatcher; glassware for table, kitchen, toilet, office,
indoor decoration; structural frames of brass; GRI 3(b); ENs
Rule 3(b)(VIII); Rule 3(b)(IX); essential character; Better
Home Plastics Corp. v. United States; HQs 086166; 087878
Dear Mr. Shoichet:
This is in reference to your request on behalf of Avon
Products, Inc., to the Director, Customs National Commodity
Specialist Division, New York, N.Y., dated July 1, 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, consists of two
circular pieces of clear glass approximately 4 1/2" in diameter
with a plastic picture between the pieces of glass. The two
pieces of glass and picture are held together with a brass rim to
which a light metal chain is attached. The picture is of a
horse-drawn buggy passing through a covered bridge and is
translucent so that light passes through it. The value of the
article is stated to be $3.15.
The HTSUS subheadings under consideration are as follows:
7013.99.80 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 $3 each: ... Other:
Valued over $3 but not over $5 each.
The 1998 general column one rate of duty for goods classifiable
under this provision is 13.5% ad valorem; that for goods of
Mexico qualifying for NAFTA treatment is 10% ad valorem.
9906.70.04 Glassware articles with structural frames of
brass, not watertight (provided for in subheading
7013.99.40, 7013.99.50, 7013.99.60, 7013.99.70,
7013.99.80, or 7013.99.90).
Goods of Mexico classifiable under subheading 9906.70.04 receive
duty-free treatment.
ISSUE:
Whether the "suncatchers" are classifiable as glassware of a
kind used for indoor decoration or similar purposes in subheading
7013.99.80, HTSUS, and, if so classifiable, whether they qualify
for duty-free treatment as glassware articles with structural
frames of brass in subheading 9906.70.04, 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.
Pursuant to GRI 3(b), goods which are prima facie classifiable
under two or more headings shall be classified as if they
consisted of the material or component which gives them their
essential character.
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 under the System. 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).
Before determining the applicability of subheading
9906.70.04, HTSUS, to the "suncatchers", we must determine
whether they are provided for in subheading 7013.99.80, HTSUS.
The components of the "suncatchers" make up a composite good (see
EN Rule 3(b)(IX), "[f]or purposes of this Rule, composite goods
made up of different components shall be taken to mean not only
those in which the components are attached to each other to form
a practically inseparable whole ..."). The components of the
"suncatchers" are, prima facie, classifiable under different
headings. Therefore, under GRI 3(b), classification of the
"suncatchers" is determined on the basis of the component which
gives it its 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), in which the Court found that, although GRI 3(b)
could not be applied, if a GRI 3(b) analysis were performed, the
essential character would be based upon the composite good's
function.
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 and holds the
illustration in place, this criterion indicates that the
essential character of the good is provided by the glass
component. Insofar as the other factors (quantity, bulk, weight,
and value) are concerned, the available evidence also supports
treating the glass component as being the component which
provides the essential character (i.e., there are two pieces of
glass and one of each of the other components, the bulk and
weight of the glass is greater, and there is no evidence as to
relative value). We conclude that the essential character of the
merchandise is provided by the glass component so that, under GRI
3(b), the "suncatchers" are classifiable in subheading
7013.99.80, HTSUS. This is consistent with past rulings of this
office (see, e.g., Headquarters Ruling Letter (HQ) 086166 dated
April 9, 1990, and 087878 dated May 20, 1991).
Next, we must determine whether the "suncatchers" have
"structural frames of brass, not watertight", as provided in
subheading 9906.70.04, HTSUS. We are unaware of any legislative
history or any other documentation as to the intent or meaning of
this provision. Accordingly, we must turn to the common or
dictionary meaning of the terms in this provision (see Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs
Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at
74, "When, however, a tariff term is not clearly defined by the
statute or its legislative history, it is also fundamental that
the correct meaning of the tariff term is presumed to be the
same as its common or dictionary meaning in the absence of
evidence to the contrary'"; see also Nippon Kogaku, Inc. v.
United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); Nylos Trading
Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949)).
The dictionary definitions of "frame" most pertinent for
this case are "2 [the] basic or skeletal structure around which a
thing is built and that gives the thing its shape; framework, as
of a house [and] 3 ... c the case or border into which a window,
door, etc. is set and which serves as a structural support"
(Webster's New World Dictionary, Third College Edition (1988)
frame). "Structural" is defined as "1 of, having, associated
with, or characterized by structure ... 2 used in or suitable for
construction ... (Webster's, supra, structural). The pertinent
definition of "structure", incorporated in the latter definition,
is "1 manner of building, constructing or organizing" (Webster's,
supra, structure).
Clearly, the brass component of the "suncatchers" meets the
above definitions of "frame" (i.e., the brass component is that
which gives the "suncatcher" its shape; also it serves as the
case or border into which the pieces of glass and illustration
are placed and serves as a structural support). Similarly, the
brass component is structural in nature in this item (i.e., it is
used to build, construct, or organize the article). The brass in
this case holds the two pieces of glass around the picture; that
is, it serves a structural function.
Inasmuch as the "suncatchers" are not watertight, we
conclude that they meet the criteria in subheading 9906.70.04,
HTSUS. If of Mexican origin, they are classified as glassware
articles with structural frames of brass, not watertight
(provided for in subheading 7013.99.80, HTSUS), in subheading
9906.70.04, HTSUS.
HOLDING:
The "suncatchers", if goods of Mexico, are classifiable as
glassware articles with structural frames of brass, not
watertight, in subheading 9906.70.04, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division