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HQ 966529





August 4, 2004

CLA-2 :RR:CR:GC MG

Category: CLASSIFICATION

Tariff No: 7013.99.5000

Port Director
Customs and Border Protection
1 East Bay Street
Savannah, GA 31401

RE: Protest Number 1703-03-100124; Home Trends Copper Flower Suncatcher

Dear Port Director:

This is our decision regarding Protest number 1703-03-100124, filed against your classification of the Home Trends Copper Flower Suncatcher (“Flower suncatcher”), imported by Wal*Mart Stores, Inc., under the Harmonized Tariff Schedule of the United States (“HTSUS”). The entry was liquidated on March 7, 2003, and the protest timely filed on May 8, 2003. A sample has been submitted for our examination.

FACTS:

The subject article consists of a hanging ornament of copper-coated steel wire with a large glass ball in the center and six smaller glass balls that are held at the bottom points on the star. The Flower suncatcher is a decorative article consisting of a body of glass and a frame or rim of metal attached to a metal chain. It is designed to hang in the window and interact with the sunlight creating a unique decorative effect. The Flower suncatcher was entered under subheading 7013.99.50, HTSUS, which provides for: “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018) (con.): Other glassware (con.): Other: Other.” Protestant claims that the Flower suncatcher is properly 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.”

ISSUE:

Is the Flower suncatcher classified as decorative glassware or as an ornament of base metal under the HTSUS?

LAW AND ANALYSIS:

At the outset, it is noted that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; (see 19 U.S.C.§1514(c)(3)(A)) and the matters protested are protestable (see 19 U.S.C. §1514(a)(2) and (5)).

Merchandise imported into the U.S. is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 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 1 through 5.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. The ENs, although not dispositive nor 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 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) (con.): Other glassware (con.):

7013.99. Other:

7013.99.5000 Other
Other:
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: Statuettes and other ornaments, and parts thereof:

8306.29.0000 Other

GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note.

The Flower suncatcher consists partly of a large glass ball and six smaller glass balls described under heading 7013, and partly of a metal frame or rim attached to a metal chain described under heading 8306. As such, the items are not specifically provided for in any one heading. Thus, for tariff purposes, they constitute goods consisting of two or more substances or materials. Accordingly, they may not be classified solely on the basis of GRI 1. GRI 2(a) is also inapplicable because it applies to incomplete or unfinished articles and the Sun catcher is imported in a finished, complete condition. In this regard, according to GRI 2(b), the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, 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. As the subject Flower suncatcher is a composite good, we must apply rule 3(b), which provides that composite goods are to be classified according to the component that gives the good its essential character. We must determine whether the glass ball or the metal frame component imparts the essential character to the Flower suncatcher.

EN 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." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Better Home Plastics Corp. v. U.S., 915 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997); 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).

We have consistently held that the essential character of a suncatcher under GRI (3)(b) is represented by its glass body and not its metal frame or rim. The glass body is the central and larger feature of the article and the component that has the greatest interaction with the light to create the product’s functional decorative effect that is most appealing to the consumer. In this type of product the metal component is ancillary and merely serves to support the glass component. See HQ 086166, dated April 9, 1990 and HQ 962066, dated September 22, 1998.

Specifically, it has long been our practice to classify glass/metal articles as glass articles. Although the metal component usually has the greater value, items such as glass articles on metal stands, glass boxes with metal edges or channeling, glass sun catchers with metal frames and glass articles with metal lids, have been classified based on the glass component, and not the metal component. Furthermore, the Flower suncatcher is advertised and sold as a suncatcher and the glass is the constituent material that is most important in relation to the use of the goods and, visually, the bulk of the item is the solid glass center, not the steel wire. The importer’s argument that the Flower suncatcher should be classified based on its metal component because of its greater value, clearly fails in light of all the other factors which prove that the glass is the more significant component that imparts the product’s essential character. See HQ 960653, dated July 1, 1998; HQ 961039, dated July 1, 1998; HQ 961141, dated July 21, 1998; HQ 962136, dated December 9, 1998; and HQ 962624, dated May 12, 1999. See also, the sections on “Glass/Metal Articles” and “Glass Suncatchers,” contained in the Informed Compliance Publication entitled Decorative Glassware, dated January 2004.

The protestant cites several rulings in support of its claim for classification. In NY I85389, dated August 22, 2002, NY classified a “Metal Galaxy Sphere” in heading 8306.29, HTSUS. This merchandise is clearly distinguishable from the Flower suncatcher in that The Galaxy Sphere is overwhelmingly metal (i.e., its center is metal and the arms holding the glass balls are metal). Moreover, the Galaxy sphere is sold as a piece of sculpted art and as a metal ornament, which is not the case with the Flower suncatcher.

Protestant further cites to NY I86768, dated October 23, 2002, where we classified a base metal wind chime with glass decoration in heading 8306, HTSUS. Although the item in that ruling was called a glass wind chime, the wind chime portion of the article actually consisted of metal tubes. This case is also distinguishable from the Flower suncatcher in that wind chimes (decorated or otherwise) are classified in heading 8306, HTSUS. (See, NY J83837, dated May 22, 2003). In that case, the article in question was a composite of both a suncatcher and a metal wind chime. We ruled that the suncatcher and the wind chime components were equally important. Therefore, under GRI(3)(c), the merchandise was classified under the applicable provision which appears last in the HTSUS (i.e., the provision for the metal wind chime). However, the product at issue in the instant case is a suncatcher and not a suncatcher/windchime. The Flower suncatcher, like all glass suncatchers with metal frames, is classified as decorative glassware in heading 7013, HTSUS, by application of GRI(3)(b).

Protestant also cites to NY F80731, dated December 9, 1999. In that case, we classified the “Man-in-the-Moon Stake” garden ornament consisting of a 36-inch tall stake topped by a crescent moon and star constructed of round steel and a 4 ¼-inch ring with 3 tabs holding a glass suncatcher with a Man-in-the-Moon face, in subheading 8306.29.0000, HTSUSA. This article is also clearly distinguishable from the Flower suncatcher in that the metal elements comprising it are far more substantial.

Because the glass imparts the essential character to the suncatcher, it is classified in heading 7013, HTSUS, as: “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018) (con.): Other glassware (con.),” by application of GRI 3(b). It is specifically provided for in subheading 7013.99.5000, HTSUSA, as: “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018) (con.): Other glassware (con.): Other: Other.”

HOLDING:

The suncatcher is classified in subheading 7013.99.5000, HTSUSA, as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018) (con.): Other glassware (con.): Other: Other.”

The Protest is hereby DENIED.

Articles classified under this tariff provision have a column one, general rate of duty of 30 percent ad valorem. Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov.

In accordance with Part VI(1)(c) of Protest/Petition Processing Handbook, dated January 2002, Subject: Protest/Petition Decisions, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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