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HQ 967375




December 8, 2004

CLA-2 RR:CR:GC 967375 RSD

CATEGORY: CLASSIFICATION

TARIFF NO. 3924.90.2000

R. Kevin Williams, Esq.
Rodriguez O’Donnell Ross Fuerst Gonzalez & Williams, P.C. 20 North Wacker Drive
Suite 1416
Chicago, Illinois 60606

RE: Tariff Classification of Picture Frames Composed of Plastic and Paperboard that are Embossed with Cartoon Character Decals

Dear Mr. Williams:

This is in response to your letter dated September 1, 2004, on behalf of Enesco Group, Incorporate, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of picture frames composed of plastic, and paperboard with a decal of licensed cartoon characters embossed on them. You have enclosed a sample of the picture frame. This sample picture frame will be returned to you in a separate cover.

FACTS:

The merchandise that is the subject of your ruling request are decorative decoupage picture frames. The picture frames are designed with various illustrative paper decals integrated onto the front face to the frame. The decals are licensed and include such animated characters as the: “Rugrats”, “Dora the Explorer”, and Little Mermaid’s “Ariel”. The picture frames have a paperboard kick-stand backing that allows the frames to stand alone on a desk, shelf, or other flat surface. The picture frames vary in size, but are designed to hold a 4”X6” photograph. The material breakdown for the frames is: 20 percent paper, 25 percent backing stand, 30 percent polyfoam and 25 percent epoxy coating. The cost breakdown is 45.6 cents for the paper, 54.72 cents for the polyfoam and 82.08 cents for the epoxy coating.

ISSUE:

What is the proper tariff classification in the HTSUS for the picture frames with a licensed cartoon character embossed on them?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied .
The HTSUS provisions under consideration are as follows:

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics:

3924.90 Other:

3924.90.20 Picture frames.

4823 Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers:

4823.90 Other

4823.90.66 Other.

There is no single heading that provides a specific description for the picture frames and thus classification cannot be determined under GRI 1. Because the picture frames are not incomplete, unfinished, nor imported unassembled, the product cannot be classified based on GRI 2.

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 picture frame is a good 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 (3924 or 4823). 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 by 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 (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, 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. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN V to GRI 3(a), states in pertinent part that “when two or more headings each refer to part only of the materials 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 than the others. In such cases, the classification shall be determined by [GRIs] 3(b) or 3(c).” The product under consideration is one in which different materials form a practically inseparable whole. Resort then, to GRI 3(b) must be made in order to make a classification.

EN VII to GRI 3(b), 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. The term “essential character” is not defined within the HTSUS, GRI’s or ENs. In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is that which is indispensable to the structure, core or condition of the article. In EN VIII to GRI 3(b), 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.

In HQ 962187 dated March 17, 1999, Customs and Border Protection (CBP) ruled on the classification of a glass picture frame that also contained metal and plastic. We stated that:

We believe that the indispensable function of the subject picture frame is the decorative display of a photograph. The glass component is the primary constituent material which accomplishes this function, primarily by allowing a clear display of the photograph and secondarily by constituting the primary decorative element of the article. The glass is the base of the article - all other components are attached to it and serve ancillary functions. The product retains its basic shape and form, and remains suited for its intended use. It is the function of displaying a photograph, which is accomplished by glass, which constitutes the essential function of the product.

In this instance, we believe that plastic is the constituent material that forms the actual frame. It fulfills the function of the article by housing a picture for decorative display. The plastic material is the most important material in forming the actual frame because it is what holds the photograph in place. Plastic material also covers and protects the photograph that is shown in the frame. The plastic material is clearly recognizable as a picture frame and the merchandise is likely to be referred to as a plastic picture frame. While the paperboard does perform a useful function, it does not form the frame itself. We believe that the paperboard is subordinate to the plastic material because it does not form the frame. Even without the paperboard, the plastic material would still be recognizable as a picture frame..

The plastic materials contained in the picture frame are also of greater weight and value than paperboard materials in the picture frame. We note in considering the weight breakdown of the materials that comprise the picture frame, the polyfoam accounts 30 percent of the weight and the epoxy coating accounts for 25 percent of weight. The polyfoam and the epoxy coating are both plastic materials, and thus the plastic materials constitute the majority of the weight of the picture frame. In addition, the cost information that you have furnished indicates that the plastic materials amount to approximately $1.37, while the cost of the paper materials in the picture frame amounts to $.45.6.

We also disagree with your contention that the cartoon character decal imparts the picture frame’s essential character. According to your analysis, the cartoon character decal constitutes the product’s essential character because it is what sells the product to consumers. Although the cartoon character decals on the picture frames may enhance the product’s appeal to consumers, it does not establish the basic essence of the product. In other words, putting a paper decal of cartoon characters on the product does not change its basic function, which is to display photographs. If the paper decal cartoon characters were removed, the product would still be a plastic picture frame for displaying photographs. Furthermore, no evidence has been presented to establish that consumers buy the product chiefly to get the licensed cartoon character logo. It is equally plausible that a consumer may be buying the product mainly to get a picture frame to display photographs, and that the presence of the licensed cartoon character on the product encourages the consumer to chose the particular picture frame over another similar picture frame. Therefore, we conclude the product under consideration should be considered as a plastic picture frame. Consequently, we conclude that the plastic materials impart the essential character of the picture frame.

This determination is consistent with previous rulings on picture frames composed of multiple materials that have cartoon scenes printed on them. In NY K87187 dated July 1, 2004, and NY K88495 dated August 25, 2004, CBP ruled that the plastic components imparted the essential character to picture frames with cartoon scenes printed on them. Because the essential character of the picture frame is determined by its plastic components, under GRI 3(b), it is classified in a heading of the HTSUS for plastic articles, Heading 3924, HTSUS as tableware, kitchenware, other household articlesother, picture frames.

HOLDING:

Based on GRI 3(b), the plastic picture frame is classified in subheading 3924.90.2000 as Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Picture frames, with a column one rate of duty of 3.4 percent ad valorem. Duty rates are provided for your convenience and are 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.

Sincerely,

Myles B. Harmon,
Director, Commercial Rulings Division


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