CLA-2 OT:RR:CTF:TCM H251139 LOR
Ms. Tonja Davenport
Customs Senior Analyst
Dollar General Corporation, LLC
100 Mission Ridge
Goodlettsville, TN 37072
RE: Revocation of New York Ruling (NY) N248093; Small Yard Stakes
Dear Ms. Davenport:
The following is our decision regarding the request for reconsideration of New York Ruling N248093 that Dollar General Corporation, LLC (“Dollar General”) filed with us on December 12, 2013. In NY N248093, U.S. Customs and Border Protection classified certain yard stakes consisting of glass figures on metal stakes, under subheading 7013.99.50 of the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed the ruling and find it to be in error.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 49, No. 16, on April 22, 2015, proposing to revoke NY N248093, and any treatment accorded to substantially identical transactions. We received one comment in response to the notice wherein the commenter requested that the proposed treatment also be accorded to a product for which the commenter had received New York Ruling Letter (NY) N143675, dated February 14, 2011.
FACTS:
The instant merchandise consists of yard stakes in the form of a flower and made from iron. Measuring approximately 22 inches, the yard stakes are coated in green paint. One end of the stake is curved and has an iron-backed glass article in the shape of a flower, or a bee, or a bird, or a lady bug affixed to it by means of a small metal ring. Three pieces of metal in the form of petals with two metal flowers are welded at the midpoint of each stake. The ornamental flower, bee, bird or lady bug are covered in broken glass and then painted in assorted colors, depending upon the specific item.
You have requested classification under subheading 8306.29.00, HTSUS, which provides for ornaments of metal in accordance with GRI 3(b)(VIII). You claim that the essential character of the garden stakes is imparted by the iron. You described the imported articles as “Small Glass Yard Stake – 4 Styles Asst” in your submission. To support classification under heading 8306, HTSUS, you contend that based on the percentage of glass by weight (9%) and the value (11%) compared to the percentage of iron by weight (91%) and the value (89%), the essential character of the yard stake is imparted by the iron. According to the invoice that you submitted, the material weight of the glass is 8 grams and the material weight of the iron is 77 grams. Using the invoice values, the total weight of the imported small glass stakes is 85 grams. The dollar values and weights are 10% of the dollar value and 9.412% for the glass component and 90% of the dollar value and 90.59% for the iron component.
ISSUE:
Whether the garden stakes are classified as ornamental articles of glass under heading 7013, HTSUS, or as articles of metal under heading 8306, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise. The GRIs are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 2(b) provides the following:
(b) Any 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. 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.
GRI 3 provides the following:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
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 or to part only of the items in a set put up for retail sale, 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.
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, 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.
When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
The HTSUS provisions 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:
* * * * *
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 7013, HTSUS, provides, in pertinent part, the following:
Articles of glass combined with other materials (base metal, wood, etc.), are classified in this heading only if the glass gives the whole the character of glass articles.
The EN for heading 8306, provides the following, in pertinent part:
(B) STATUETTES AND OTHER ORNAMENTS
This group comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non-metallic parts) of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, places of religious worship, gardens.
It should be noted that the group does not include articles of more specific headings of the Nomenclature, even if those articles are suited by their nature or finish as ornaments.
The group covers articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to contain or support other decorative articles or to add to their decorative effect, for example:
Busts, statuettes and other decorative figures; ornaments (including those forming parts of clock sets) for mantelpieces, shelves, etc. (animals, symbolic or allegorical figures, etc.); sporting or art trophies (cups, etc.); wall ornaments incorporating fittings for hanging (plaques, trays, plates, medallions other than those for personal adornment); artificial flowers, rosettes and similar ornamental goods of cast or forged metal (usually of wrought iron); knick-knacks for shelves or domestic display cabinets.
EN (VIII) for GRI 3(b) provides, in pertinent part, the following:
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.
Explanatory Note VIII to GRI 3(b) explains 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 the constituent material in relation to the use of the goods." Court decisions on essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the good. See Better Home Plastics Corp. v. U.S., 915 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997) ("Better Home Plastics"); Mita Copystar America, Inc. v. U.S., 966 F. Supp. 1245 (CIT 1997), rehear’g denied, 994 F. Supp. 393 (1998); Vista Int’l Packing Co. v. U.S., 890 F. Supp. 1095 (CIT 1995). See also Pillowtex Corp. v. U.S., 893 F. Supp. 188 (CIT 1997), aff’d 171 F. 3d 1370 (CAFC 1999); Avenues in Leather, Inc. v. U.S., 2004 Ct. Int’l Trade LEXIS 39, aff’d 2005 U.S. App. LEXIS 19816 (Fed. Cir. 2005).
In The Home Depot, U.S.A., Inc., v. United States, 2006 Ct. Int’l Trade, LEXIS 40, aff’d 2007 (CAFC), the Court relied upon the EN for GRI 3(b) (VIII) and case law for guidance in determining what factors constitute essential character. The Court specifically referenced United China & Glass Co. v. United States, 61 Cust. Ct. 386, C.D. 3637, 293 F. Supp. 734 (1968) and A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, C.D. 4218 (1971). Factors considered in United China reflected the article’s “name … other recognized names … invoices and catalogue descriptions … size, primary function, uses … and ordinary common sense.” Id. At 389. Emphasis added. In A.N. Deringer, the court noted that “[t]he character of an article is that attribute which strongly marks or serves to distinguish what it is. It’s the essential character that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Id at 383. The Court stressed, however, that in an essential character determination, “the situation must be reviewed as a whole.” Id. at 384 (citation omitted).
In Home Depot, the CIT found that the glass in certain light fixtures reflected the imported articles name and had a much greater visible surface area and weighed much more than the metal component as the factor “materials’ role in the relation to the use of the good” as listed in GRI 3(b). When considering the “materials” role for certain light fixtures, however, the Court found the metal components were the most important for design and structure, but also that because it was an exterior fixture, that the glass component was the most important for function and use.
With regard to the iron yard stakes bearing glass-plated ornaments, these articles are composite goods that cannot be classified at GRI 1 because there is no heading that describes the complete good. At GRI 3(b), CBP has considered that the essential character of decorative articles that are composite goods is given by the component which imparts the visual impact in accordance with use of the goods as items of decoration. For instance, in HQ H044562, dated June 1, 2009, CBP determined that certain insect decorative garden stakes, made form metal wire dipped in epoxy with plastic beads added for accent on insects, were composite goods which were classifiable in accordance to GRI 3(b) under heading 3926, HTSUS.
Here, the imported article is a yard stake, made of iron, painted green and bearing metal petals and metal flowers, and also bearing a glass ornament that is backed by iron. The name of the imported article is reflected in the yard stake as opposed to the glass ornament. In considering the ‘materials’ role in the essential character analysis, we note that the metal stake and the glass ornament are imported as one unit. Based upon the documentary evidence and using the values that you have provided the metal content weighs nearly 10 times more than the glass content of the imported article. The dollar value of the metal content in the stake is also several times more than the value of the glass content of the imported article. In considering the samples that were submitted, we note that the material which provides the most significant visual impact and consumer appeal of the yard stakes rests primarily in the painted broken glass. However, the painted metal stake bearing metal petals and flowers also provides significant visual impact, color and consumer appeal.
In HQ H044562, we found that the material that provided the visual impact, color, consumer appeal and nature of certain metal garden stakes was the plastic beads which gave color and detail to the insect and its wings. We noted that “[A]lthough the insect itself may include a thin wire to hold its shape, the wire and the stake were of lesser importance in relation to the use of this good for solely ornamental purposes.” Moreover, in NY N005494, dated May 9, 2007, we noted that the essential character of the article was imparted by the glass ornament. In NY N189576, dated November 14, 2011, we found that the red “light-up” glass ball was the focus of one’s attention on the article as opposed to the stake. Lastly, in N246035, dated December 4, 2013 we determined that the thin metal rod (garden stake) was less significant than the glass component.
Unlike the articles discussed in HQ H044562 and in NY N005494, NY N189576, and NY N246035, the decorative metal content of the metal garden stake at issue, including the iron mounting the back of each glass component and the metal ornamentation welded to the metal stake, is significantly greater than the glass content. Although you describe the article as a “small glass yard stake, the metal component most accurately describes the imported article inasmuch as it provides the overall design and structure to the imported article. In addition, the metal stake provides substantial visual impact, thus imparting a decorative presence to the imported article. Lastly, whereas the iron stake is substantial enough to drive into the ground, to serve as a boundary marker, or to support a plant, it does more than merely support the glass component – it enables the stake to function as a decorative yard stake.
The article referenced in the comment consists of a glass ball containing an LED bulb, topped by a metal insect, and surrounded by a metal swirl. The glass ball rests on top of a metal stake that has a plastic panel at the mid-point. The plastic panel stores solar energy. This solar garden stake is not substantially similar to the painted metal stake. Therefore, NY N143675 is not subject to consideration under this ruling.
Whereas the painted metal stake reflects the imported article’s function and use, imparts the greatest material content and material value of the imported article, and provides a significant part of the visual impact of the imported article, we are of the opinion that the metal content provides the essential character of the imported article. Therefore, painted metal stake is to be classified under heading 8306, HTSUS.
This decision is consistent with several rulings issued in 2013 where the metal component was found to impart the essential character for certain metal garden stakes incorporating non-metal components. See, NY N246384, dated October 17, 2013, involving certain metal garden stakes with a butterfly and/or a dragon fly with four sections of colorful glass inserts within the wing of each insect; NY N245426, dated September 10, 2013, involving certain metal garden stakes with ornamental figures of base metal and glass or base metal and acrylic; and lastly, NY N237957, dated February 11, 2013, involving certain metal garden stakes with an owl with a glass body, a sun flower with a glass center surrounded by metal flowers, and/or a pumpkin with a glass center surround by a metal border, stems and a leaf on a metal sign. We classified the merchandise in each of these cases under subheading 8306.29.00, HTSUS.
HOLDING:
At GRI 3(b), the instant decorative garden stakes are classified in heading 8306, HTSUS. Specifically, at GRI 6, the merchandise is classified in subheading 8306.29.00, HTSUS, which provides for: “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: Other.” The column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N248093, dated December 12, 2013, is hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
/s/
Myles B. Harmon, Director
Commercial and Trade Facilitation Division