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HQ 962066




September 22, 1998

CLA-2 RR:CR:GC 962066 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.80; 9906.70.04

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

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