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HQ 962136




December 9, 1998

CLA-2:RR:CR:GC 962136:AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50

Ruby L. Wood, Senior Vice President
Evans and Wood & Co., Inc.
P.O. Box 610005
D/FW Airport, Texas 75261

RE: Glass and brass box; NY C87555

Dear Ms. Wood:

This is in response to your letters of June 2, and August 12, 1998, on behalf of Greco Frame and Supply, Inc., to the Customs National Commodity Specialist Division, New York, requesting reconsideration of New York Ruling Letter (NY) C87555, dated May 15, 1998, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a glass and brass box. Your letters were forwarded to this office for response.

FACTS:

The article (item #5002) is cube shaped, with six square pieces of glass measuring four inches on a side, with thin, brass framing to hold the glass in place. Each pane is designed to accommodate a photograph. An attachment to your submission indicates that the value of the glass component is U.S. $4.00 and the value of the brass component is U.S. $2.00.

ISSUE:

Whether the product is classified as a decorative article of glass in subheading 7013.99.50, HTSUS, or as a photo frame of metal in subheading 8306.30.00, HTSUS?

LAW and ANALYSIS:

Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRI's). GRI 1, HTSUS, 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[.]" The headings 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):
Other glassware:

7013.99 Other:

Other:

Other:

7013.99.50 Valued over $0.30 but not over $3 each.

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:

8306.30.00 Photograph, picture or similar frames; mirrors; and parts thereof.
While the product, prima facie, can be described by both of these headings, it cannot be classified according to GRI 1. Resort must then be made to the remaining GRI's.

GRI 2 (b) provides in pertinent part that "the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3."

GRI 3(a) and (b) provide:

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:

(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 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.

(b) 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 interpreting and implementing the HTSUS, the Explanatory Notes (EN's) of the Harmonized Commodity Description and Coding System may be utilized. The EN's, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The guidance of the EN's is necessary in the instant analysis.

EN Rule 3(b)(VII), p. 4, states, in reference to GRI 3(b), 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."

The term "essential character" is not defined within the HTSUS, GRI's or EN's. EN Rule 3(b)(VIII), p. 4, gives guidance, stating that "the 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."

Recently, there have been several decisions by the Court of International Trade (CIT) which addressed "essential character" for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. The Court examined the role of the constituent materials in relation to the use of the goods and found that, although the relative value of the textile curtain was greater than that of the plastic liner, and although the textile curtain also served protective, privacy and decorative functions, because of the fact that the plastic liner served the indispensable function of keeping water inside the shower, the plastic liner imparted the essential character upon the set. See also 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), in which the Court also looked to the role of the constituent material in relation to the use of the goods to determine essential character.

The glass components impart the essential character to the article. They perform the "indispensable function" of displaying that which is placed in the article. Furthermore, the glass component is greater in bulk, quantity, weight and value than the brass component. Therefore, the article is classifiable as other glassware of a kind used for office or indoor decoration or similar purposes in subheading 7013.99.50, HTSUS.

This determination is in accordance with a prior ruling on similar articles. In Headquarters Ruling Letter (HQ) 086166, dated April 9, 1990, we dealt with the classification of glass curio and trinket boxes with brass feet and brass on the side or edges. The importer argued that the essential character of the boxes was represented by the brass, since the value of the brass was much greater than the value of the glass. Though the brass represented a greater portion of the product's value than the glass, the body of the article (the top, bottom, and sides) consisted of glass. Furthermore, the function of the box, to hold articles, was performed by the glass, not the brass. Therefore, HQ 086166 held that the essential character of the boxes was provided by the glass component.

HOLDING:

The glass cube with brass-trimmed frame is classifiable under subheading 7013.99.50, HTSUS as glassware of a kind used for . . . office, indoor decoration or similar purposes . . . other glassware: other: other: other: valued over thirty cents but not over three dollars each. The column 1, general rate of duty is 30% ad valorem.

EFFECT ON OTHER RULINGS:

NY C87555 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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