CLA-2 OT:RR:CTF:TCM H017653 JER
Ms. Nancy Quirk, Esq.
Evans & Wood, Co., Inc.
612 E. Dallas Road, Suite 200
Grapevine, TX 76051
RE: Classification of Glass Picture Frames
Dear Ms. Quirk:
This ruling letter is in response to your request, dated August 14, 2007, for the tariff classification of four photo frames, items 776112, 258160, 787705 and 110452. This ruling request was made in accordance with 19 C.F.R. §177.2 (2)(a) (2)(ii) regarding the proper classification under the provisions of the Harmonized Tariff Schedule of the United States (HTSUS). You suggest that items 776112 and 258160 should be classified in heading 4414 HTSUS and that items 787705 and 110452 should be classified in heading 4823 HTSUS, as other articles of paperboard. Your letter was forwarded to U.S. Customs and Border Protection (CBP) Headquarters on September 14, 2007, for a response.
FACTS:
The merchandise at issue includes four photo frames varying in style and structure.
Style # 776112 is an 8” x 8 ¾” photo frame made of a medium density fiberboard (MDF) wood backing which is covered by a thick velvet fabric covering with an attached easel stand. It has two decorative L-shaped paperboard corner sections which sit atop the matting, also made of paperboard. A thick glass cover is secured to the body of the frame by two 8 ¾ inch metal clip strips which run the length of the sides of the item.
Style # 258160 is an 8 ½” x 10 ½” photo frame made of a MDF wood backing which is covered by a black velvet fabric covering with an attached easel stand. MDF wood backing has a 4” x 6” section which is carved out of the backing, designed to insert and display a photograph. The 4” x 6” section is removable and is attached to an easel stand. It has a decorative glass front cover which is glued to the face of the item.
Style # 787705 is a 5 ¼” x 7 ¼” photo frame made of a hard paperboard backing with glass cover. The paperboard is covered with a black velvet fabric and decorative glass front cover which is glued to the face of the item.
It has a decorative glass front cover which is glued to the face of the item.
Style # 110452 is a 6 ½” x 8 ¼” photo frame made with a paperboard backing and a decorative glass front cover which is glued to the face of the item. It has a removable rear section which is carved and grooved to accommodate a 4” x 6” photograph.
None of the last three styles described above, have a traditional frame which surrounds and secures the items or its photographs together.
ISSUE:
Whether the subject photo frames should be classified as other articles of paperboard in heading 4823 HTSUS, as wooded frames in heading 4414, HTSUS, as other made up articles in heading 6307, HTSUS or as other glassware of a kind used for indoor decoration in heading 7013, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
4414.00.00 Wooden frames for paintings, photographs, mirrors or similar objects:
4823 Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paperboard, cellulose wadding or webs of cellulose fibers:
* * *
4823.90 Other:
Other:
4823.90.4000 Frames or mounts for photographic slides
* * *
Other:
Of coated paper or paperboard
* * *
4823.90.6700 Other
6307 Other made up articles, including dress patterns:
* * *
6307.90 Other:
* * *
Other:
6307.90.9889 Other
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
Classification of these articles cannot be determined according to the terms of GRI 1. GRI 2(b) states that “[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances [and] any 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. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.”
The articles are goods consisting of more than one material or substance. By application of GRI 2(b) (above), it is prima facie classifiable under more than one heading (4410 or 6307 or 4823 or 7013). Accordingly, classification must be made according to the principles of GRI 3.
GRI 3 states, in pertinent part:
When by application of [GRI] 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . , those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The headings covering the article refer only to part of the materials or components contained therein. Therefore, under GRI 3(a), the headings must be regarded as equally specific in relation to the article, and the article must be classified as if it consisted of the material or component which gives it its essential character, pursuant to GRI 3(b).
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The relevant ENs are as follows:
EN VII to GRI 3(b), p. 4, states that in “all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
However, the term “essential character” is not defined within the HTSUS, GRI’s or ENs. EN VIII to GRI 3(b), p. 4, gives guidance, stating that:
[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
The EN to heading 48.23, HTSUS, EN (13) provides, in pertinent part:
[T]he heading includes: (13) “Stamp mounts, photograph mounting and photo mounts…”
* * *
When presented with a traditional picture frame, the merchandise is typically classified according to the frame portion of the overall product. Specifically, there usually includes a frame made of either: wood, metal, or plastic which surround and support the glass, the matting and backing components of the product. As with non-traditional picture frames, U. S. Customs and Border Protection (CBP) has classified non-traditional picture frames according to which component of the picture frame imparts the item’s essential character. In Structural Industries, Inc. v. United States, 360 F. Supp. 2d 1330, Ct. Int’l Trade, 2005, the Court settled the issue of essential character as it pertained to the “Euro Clip” or “Clip Picture Frame.” In Structural Industries, the Court noted that the essential character of an article is “that which is indispensable to the structure, core or condition of the article, i.e. what it is.”(Id.). Determinative of a picture frame’s essential character is that component which is indispensable in performing the primary objective of displaying pictures.
The “Euro Clip” was made of a glass cover, secured to a hardboard masonite backing, by four removable metal clips. The Court rejected the argument that the glass cover imparted the picture frame’s essential character because the frame could perform its primary function without the glass cover. Similarly, the Court noted that while the metal clips contributed to the frame’s overall purpose, that even without the metal clips, the masonite backing could display images if such were affixed by other means (e.g. tape or glue). Likewise, the masonite backing was said to provide the stability, support and rigidity necessary to meet the article’s purpose and prevent the image from twisting. (Structural Industries at 1338). As such, the Structural Industries Court found that the masonite backing imparted the article’s essential character, without which the primary purpose of displaying images could not be performed.
Prior to Structural Industries , CBP rulings which involved glass picture frames found guidance in EN VIII to GRI 3(b) p.4, which states factors such as the article’s “bulk, quantity, weight, value, or the role of a constituent material in relation to the use of the goods.” (See e.g., Headquarters Ruling Letter (“HQ”) 962187, dated March 17, 1999). With these criteria in mind, the Court in Structural Industries further noted that, while cost is taken into consideration that cost alone is not dispositive. The Court went on to note that more relevant to the weight and value of the merchandise, is its structure and function.
We find that the primary function of the subject picture frame items is to display photographs. Items, # 258160, # 787705 and # 110452, each have a carved out opening in the hardboard backing intended to allow the consumer to insert and display a photograph. We believe that the hardboard backing of these items is the material which accomplishes the primary function of these products. Particularly, item 258160 which has a wooden fiberboard backing with an attached easel stand and a removable 4”x6” rear opening. This item requires no additional matting or border to outline the photograph. Likewise, the carved out 4”x6” area is where a photograph of equal measurements is intended to be fitted and displayed. The glass portion covers the entire facing of the frame yet it is the wooden fiberboard backing that actually frames and displays the photograph.
Most similar to the Euro Clip frame is style 776112. It has two long metal strips which extend along the outer edges of the merchandise. These metal strips hold the entire frame unit together. Like the metal clips in Structural Industries, these metal strips cannot by themselves display a photograph. In Headquarters Ruling Letter (HQ) 963232 dated April 14, 2000, a clip picture frame with a glass front secured to a wooden fiberboard back by six metal clips was classified according to the glassware. As this decision predated the Structural Industries decision, we find that this ruling is revoked by operation of law. We adopt the Structural Industries rationale and determine that the role of the metal strips in item 776112 are ancillary to the role and function of the hardboard backing.
The remaining picture frames style # 787705 and style # 110452, although non-traditional in style are quite dissimilar to the Clip Frame. Neither frame has metal clips which secure the glass cover to the backing. Yet in their functionality and role, the composition of these frames follow the reasoning of Structural Industries. While both have decorative glass covers which likely increase the overall value and marketability of the frame, under the reasoning of Structural Industries, the glass cover is not sufficient to impart the essential character for these items.
Items 787705 and 110452 require the existence of their respective paperboard backings in order to perform their intended use. Under the Structural Industries rationale, these two frames could not display photo images by an exclusive reliance on the glass cover. By contrast, each could perform the function of displaying images in the absence of the glass cover. Despite the value of the decorative glass cover, we find that the paperboard backing imparts the essential character of items 787705 and 110452.
We conclude that, like the masonite backing in Structural Industries, the wooden fiberboard backing of items 776112 and 258160, provide the core, stability and support indispensable to the item’s structure and function. Without which, the primary purpose of displaying photo images could not be performed. Accordingly, we find that the wooden fiberboard backing of items 776112 and 258160, impart the essential character for these two picture frames.
The Court noted that “once the essential character of an article has been determined, the whole of the article is to be classified as if it consisted of the element that imparts the essential character.” Here the paperboard backing of items 787705 and 110452 and the wooden fiberboard backing of items 776112 and 258160 impart the essential character of the respective photo frames.
Where it is true that the whole of the merchandise is to be classified according to the component which imparts its essential character, the Court noted that “goods must also be classified in the form in which they are imported.” (Structural Industries at 1337, citing Pomeroy Collection, Ltd. vs. United States, 336 F.3d 1370 (2003). Meaning that, while the essential character of a particular article might be wooden fiberboard or paperboard, “goods are not classified as though they were composed exclusively of that component.” In addition to the component which imparts the article’s essential character, each item is also marketed, sold and used by consumers as a picture frame and not merely as a good of fiberboard or paperboard. Accordingly, items 776112 and 258160 are properly classifiable in heading 4414, HTSUS, which provides for wooden frames for paintings, photographs, mirrors or similar objects.
Having determined that the paperboard backing is the most indispensable component to items 787705 and 110452 and therefore imparts the essential character, it becomes necessary to determine whether classification of the merchandise as imported is proper solely as an article of paper or paperboard. We have in at least one instance, classified a paper photo frame in heading 4823, HTSUS. In NY 807846, dated May 31, 1995, CBP classified a paper photo frame in heading 4823, HTSUS, as other articles of coated paper or paperboard. The item had an oval shaped opening cut out of its center which provided the user to insert a photograph for display. This same feature is consistent with the carved out opening of items 787705 and 110452. Items 787705 and 110452, each have a carved out section for which the photograph is intended to be mounted and displayed. Neither requires additional matting or borders because it is the paperboard backing which acts to “frame” the picture. Furthermore, Explanatory Note (13) to heading, 4823, HTSUS, states in pertinent part that this heading includes: “[s]tamp mounts, photograph mounting corners and photo mounts…” It follows that items 787705 and 110452 are classifiable as photo frames or mounts made of paperboard, in heading 4423, HTSUS.
HOLDING:
By application of GRI 3(b), items # 776112 and # 258160 are classified in heading 4414, HTSUS, and specifically subheading 4414.00.000 as: Wooden frames for painting, photographs, mirrors or similar objects with a column one, general duty rate of 3.9% ad valorem. By application of GRI 3(b), items # 787705 and # 110452 are classified in heading 4823, HTSUS, and specifically subheading 4823.90.6700, HTSUS, as: “Other paper, paperboard…cut to size or shape: other articles of paper pulp, paperboard, cellulose wadding or webs of cellulose fibers: Other: Other: Other: Of coated paper or paperboard: Other.” The column one, general rate of duty is free.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch