CLA-2 RR:CR:GC 962462 PH
Thomas J. O’Donnell, Esq.
O’Donnell, Byrne & Williams
20 North Wacker Drive
Suite 1416
Chicago, IL 60606
RE: "Artcatcher" with nickel silver structural frame
Dear Mr. O’Donnell:
This is in reference to your request on behalf of Via Vermont, Inc., to the Director, Customs National Commodity Specialist Division, New York, N.Y., dated December 1, 1998, for a ruling as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of "artcatchers" with structural frames of nickel silver. Samples were provided. Your letter was referred to this office for reply. We regret the delay.
FACTS:
The merchandise under consideration consists of the following:
Item # 462586, described as a "suncatcher", is circular in form with a diameter of approximately 2". It consists of a piece of clear round glass over a representation on mylar of a "Santa Claus" figure carrying a bag of gifts, with green fir trees and decorative balls making up a circular border. There is a circular "tin backer" behind the picture, and the pieces are held together by a light metal frame to which is attached a small black ribbon.
Item # 462411, described as a "bi-fold plaque", has two rectangular sides with a hinge between them enabling them to be folded against each other. The two sides are rectangular in shape and measure approximately 3 3/4" X 3". Each side consists of a rectangular piece of clear glass over a representation on mylar with a "tin backer" behind the picture. The picture on one side is of a "Santa Claus" figure reading a list with two children and a decorated fir tree behind the figure and text related to Christmas. The other side bears the words "May your name always be at the top of Santa’s list". Each illustration has a border of wrapped gifts and Christmas-like decorations. The glass, picture, and "tin backer" are held together by a light metal frame.
Item # 462586, described as a "suncatcher", is rectangular in shape and measures approximately 3 3/4" X 3". It consists of two pieces of clear glass, between which there is a translucent representation on mylar of a "Santa Claus" figure. The representation is between the pieces of glass, so that it is seen through the glass from either side. The two pieces of glass are held together by a light metal frame to which is attached a light metal chain.
In each case, the representation is permanently held in place (i.e., it may not be removed without destroying the article). You provide the comparative cost and weight of the components of the articles. In item #’s 462411 and 462241, the mylar is the most expensive component, with the other components considerably less expensive, relatively. In item # 462586, the glass is the most expensive component, with the mylar slightly less expensive. In each of the articles, the weight of the glass is considerably greater than the combined weight of the remaining components.
You state that the structural frames are made of an alloy known commercially as "nickel silver". The composition of the frames is approximately as follows:
Copper 64%
Zinc 22%
Nickel 12%
Manganese <1%
Lead <1%
Iron <1%
You contend that the articles are entitled to duty-free treatment under subheading 9906.70.04, HTSUS, as 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, HTSUS). You contend that the definition of brasses and nickel silvers in Subheading Note 1, Chapter 74, HTSUS, is inapplicable to subheading 9906.70.04 because of the limiting words "[i]n this chapter" in the subheading note. You cite Van Nostrand’s Scientific Encyclopedia and the Encyclopedia Britannica for the proposition that nickel silver is generally recognized as a form of brass.
ISSUE:
Whether the "artcatchers" are classifiable as glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.40 through 7013.99.90, 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).
The HTSUS headings and subheadings 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)
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
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
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)
Before determining the applicability of subheading 9906.70.04, HTSUS, to the articles, we must determine whether they are provided for in subheading 7013.99..40 through 7013.99.90, HTSUS. The "artcatchers" are goods consisting partly of plastics, partly of glass, partly of base metal, and (in one case) partly of a textile ribbon; they may not be classified solely on the basis of GRI 1; and the components of the articles make up a composite good (see EN Rule 3(b)(IX)). Therefore, under GRI 3(b), classification of the "artcatchers" 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 "artcatcher" or to otherwise "show" the illustration. Since the glass is the component that performs this function, 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 articles are classifiable in subheading 7013.99.40 through 7013.99.90, 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).
Next, we must determine whether the "artcatchers" 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. We have ruled that similar frames of brass are "structural frames" within the meaning of this provision, based on the common or dictionary meaning of the terms "structural" and "frame" (see HQ 962066 dated September 22, 1998, and the analysis therein). However, the articles under consideration have frames of an alloy known as "nickel silver". Accordingly, we must determine whether "nickel silver" is "brass" for purposes of subheading 9906.70.04, HTSUS.
As we stated in HQ 962066, cited above, we are not aware of any legislative history or any other documentation as to the intent or meaning of the phrase "structural frames of brass, not watertight" as provided in subheading 9906.70.04, HTSUS. As you indicate, it is well established that tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949)). Furthermore, "in those instances where the common and commercial meanings differ, the party who argues that the term ‘should not be given its common or dictionary meaning must prove that there is a different commercial meaning in existence which is definite, uniform, and general throughout the trade’" (Winter-Wolff, Inc., v. United States, 996 F. Supp. 1258, 1261 (CIT 1998), citing Rohm & Haas Co. v. United States, 2 Fed. Cir. (T) 28, 29, 727 F.2d 1095, 1097 (1984)).
The common meaning of "brass" is "a yellowish metal that is essentially an alloy of copper and zinc" (Webster’s New World Dictionary, 3rd College Ed. (1988), p. 170; see also, Random House Unabridged Dictionary, 2d. Ed. (1993), p.254 "any of various metal alloys consisting mainly of copper and zinc"; Bradlow, Inc. v. United States, 66 Cust. Ct. 333, 335, C.D. 4211 (1971), "A person with even a slight familiarity with metals could be expected to know that brass is an alloy consisting essentially of copper and zinc in various proportions"). "Nickel silver", which is the alloy involved in this case, is distinguished from brass in the dictionary (see Webster’s, supra, p. 915, defining "nickel silver" as "a hard, tough, ductile, malleable, silver-white alloy composed essentially of nickel, copper, and zinc ..."; Random House, supra, pp. 1298, 801, in which the entry for "nickel silver" refers to "German silver" and the latter term is defined as "any of various alloys of copper, zinc, and nickel, usually white and used for utensils, drawing instruments, etc.; nickel silver").
Brass and nickel silver are also distinguished from each other in their commercial meanings. See, e.g., American Society for Testing and Materials (ASTM), volume 02.01 (1997), pp. 847-864, where standard designations for wrought and cast copper and copper alloys are set forth. Among the alloys described are various kinds of brasses, "contain[ing] zinc as the principal alloying element [in addition to copper] with or without other designated alloying elements, such as iron, aluminum, nickel and silicon" and, under a separate heading, "Copper-Nickel-Zinc alloys - Known commonly as ‘nickel silvers,’ these are alloys which contain zinc and nickel as the principal and secondary alloying elements, with or without other designated elements." Listed in both wrought alloys and cast alloys under the heading "NICKEL SILVERS" are "Copper-Nickel-Zinc Alloys (Nickel Silvers)" (ASTM, supra, at pp. 858, 863. The alloy stated to be used in this case, "Nickel Silver 65-12", is listed among the wrought alloys, NICKEL SILVERS, at p. 858, ASTM, supra.
Definitions consistent with the common or dictionary meanings of brass and nickel silver are assigned for "[c]opper-zinc base alloys (brasses)" and "[c]opper-nickel-zinc base alloys (nickel silvers)" in Subheading Note 1, Chapter 74, HTSUS (see also, the General EN for Chapter 74, which similarly distinguishes between brasses and nickel silver (see paragraphs (1) and (3)). Although these meanings of brasses and nickel silver are assigned "[i]n this chapter [i.e., Chapter 74, HTSUS]", we note that the Courts have held that:
[W]here the same word or phrase is used in different parts of the same statute, it will be presumed, in the absence of any clear indication or a contrary intent, to be used in the same sense throughout the statute [citations omitted] [Productol Chemical Co. v. United States, 74 Cust. Ct. 138, 151, C.D. 4598 (1975); compare to Blakley Corp. v. United States, 15 F. Supp. 2d 865 (CIT 1998), in which the Court used the common meaning instead of a heading definition when the two definitions differed].
Accordingly, in the absence of any legislative history or clear contrary intent, we conclude that "brass", as used in subheading 9906.70.04, HTSUS, has the common and commercial meaning of that term, which is consistent with the distinction between brass and nickel silver in the definitions of those terms in Subheading Note 1, Chapter 74, HTSUS. Therefore, the nickel silver frames under consideration are not "structural frames of brass" for purposes of heading subheading 9906.70.04, HTSUS.
For your information, although you did not raise this issue, each of the articles under consideration may qualify as a "festive article", classifiable in heading 9505, HTSUS. In this regard, we note Midwest of Cannon Falls, Inc. v. United States, 20 CIT ___, Slip Op. 96-19 (January 18, 1996); affirmed in part, reversed in part, 122 F.3d 1423 (Fed. Cir. (T) 1997). In this case, the Courts addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." The Courts applied their conclusions to specific articles to determine whether they were included within the scope of the class "festive articles." All of the articles ultimately ruled upon by the CAFC were found to be classifiable as "festive." This case resulted in new guidelines for the classification of "festive articles." In general, merchandise is classifiable in heading 9505, HTSUS, as a "festive article" when the article, as a whole:
1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;
2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and
3. Is associated with or used on a particular holiday.
Additionally, the Courts gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (1976). Therefore, for those articles involving holidays, and symbols not specifically recognized in Midwest, in addition to the above criteria, Customs will consider the general criteria set forth in Carborundum in determining whether the particular article is of a class or kind of good known as "festive articles." Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. In the January 21, 1998, CUSTOMS BULLETIN, vol. 32, no. 2/3, p. 169, Customs published an Informed Compliance Publication (ICP) on the classification of festive articles as a result of Midwest.
The "artcatchers" have no precious or semi precious stones, metals or metal clad with precious metal. They function primarily as decorations used in celebration of and for entertainment for a particular holiday; Christmas.
Customs has always recognized Christmas as a festive holiday for tariff purposes. Furthermore, we recognize that hanging decorations or decorations which may be attached to a window or other surface are, in general, articles which may be of a class or kind of decoration considered a "festive article" for tariff purposes. Each of the articles has a "Santa Claus" motif or pattern (recognized as festive in Midwest) and may be classified in heading 9505, HTSUS, without application of the Carborundum factors (see ICP on classification of festive articles, CUSTOMS BULLETIN, vol. 32, no. 2/3, p. 176). Decorative articles with a motif or pattern other than those recognized to be festive in Midwest are subject to a Carborundum analysis. In this regard, see HQs 961465 dated September 22, 1998, and 961471 dated May 4, 1999.
HOLDING:
The "artcatchers" are classifiable as glassware of a kind used for indoor decoration or similar purposes in subheading 7013.9940 through 7013.99.90, HTSUS depending on their value, but are not classifiable as glassware articles with structural
frames of brass, not watertight, in subheading 9906.70.04, HTSUS, because the frames of the articles are "nickel silver" alloy, not brass.
Sincerely,
John Durant, Director
Commercial Rulings Division