CLA-2 OT:RR:CTF:TCM H071435 AvH
Richard D. Wilson
CRI2000, LP
820 East Gate Dr.
Mt. Laurel, NJ 08054
RE: Request for Reconsideration of N045826; Classification of Picture Frames of Lead Crystal Glass from China
This letter responds to your request for reconsideration of New York Ruling letter (NY) N045826, issued to you on December 18, 2008. In NY N045826, we determined that an “oval” and a “round” picture frame are classified under subheading 7013.91.50, Harmonized Tariff Schedule of the United States (HTSUS), as decorative glassware. You contend that that the “round” and “oval” frames are characterized by their underlying metal structure, not by the glass which covers the metal itself, and therefore, should be classified under subheading 8306.30.00, HTSUS. CBP has determined that NY N045826 is correct, and that the “oval” and “round” picture frames should be classified under subheading 7013.91.50, HTSUS.
FACTS:
The merchandise at issue includes two photo frames described as “Jeweled Heritage Frames Made with Crystallized – Swarovski Elements.” They are described separately, below.
Model # 25473-BA, described as the “Round Jeweled Frame,” measures approximately 4 ½ ’’ across in diameter and is composed of zinc alloy, colored epoxy coated metal, lead crystals, glass and ribbon. The glass interior intended to hold the photograph has a diameter of approximately 2 ½ ’’. The frame surrounding the glass interior is approximately 1 ’’ thick and is covered with five rows of lead glass crystals of varying sizes. There is no colored epoxy coated metal on the front of the frame. The center backing of the frame is made of zinc alloy coated with a colored epoxy and has an attached easel stand. The easel stand is also covered with colored epoxy and has two lead crystals at the bottom. The back of the frame is decorated with silver swirls and has three leaves made out of zinc alloy. The leaves are screwed into the backing of the frame and swivel open to allow the colored epoxy piece to be removed and a photograph placed inside the frame. A black ribbon is tied around the easel stand for aesthetic purposes. The back of the 1 ’’ thick frame surrounding the glass interior does not contain any lead crystals.
Model # 25544-BA, described as the “Oval Jeweled Frame,” measures approximately 4’’ in diameter horizontally by 5 ’’ in diameter vertically, and is composed of zinc alloy, colored epoxy coated metal, lead crystals, glass and ribbon. The glass interior intended to hold the photograph has a diameter of approximately 2 ¾ ’’ in diameter horizontally by 3 ¾ ’’ in diameter vertically. The frame surrounding the glass interior is approximately ¾ ’’ thick and is composed of three rows. The innermost row is the narrowest and is composed of small lead glass crystals. The second row is thicker and is composed of colored epoxy coated metal. The outermost row is the thickest and is composed of larger glass crystals. The center backing of the frame is made of zinc alloy coated with a colored epoxy and has an attached easel stand. The easel stand is also covered with the colored epoxy and contains two lead crystals at the bottom. The back of the frame is decorated with silver swirls and three leaves made out of zinc alloy. The leaves are screwed into the backing of the frame and swivel open to allow the colored epoxy piece to be removed and a photograph to be placed inside the frame. A black ribbon is tied around the easel stand for aesthetic purposes. The back of the ¾ ’’ thick frame surrounding the glass interior does not contain any lead crystals.
ISSUE:
Whether the subject photo frames should be classified as articles of lead crystal glass for toilet, office, indoor or similar purposes in subheading 7013.91.50, HTSUS, or as photograph, picture or similar frames, of base metal in subheading 8306.30.00, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
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):
Other glassware:
* * *
7013.91 Of lead crystal:
7013.91.50 Valued over $5 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
Classification of these articles cannot be determined according to the terms of GRI 1 because they are composed of at least two different materials. 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 articles are goods consisting of more than one material or substance, classifiable under more than one heading (7013 or 8306). 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 affected 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 as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The headings mentioned above cover only part of the materials or components contained in the merchandise at issue: glassware of lead crystal (7013) and picture frames of base metal (8306). Therefore, under GRI 3(a), the headings must be regarded as equally specific in relation to the article, and the article must be classified as if it consisted of the material or component which gives it its essential character, pursuant to GRI 3(b).
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The relevant ENs are as follows:
EN VII to GRI 3(b), p. 4, 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.”
However, the term “essential character” is not defined within the HTSUS, GRIs or ENs. EN VIII to GRI 3(b), p. 4, 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.
There have been several court decisions which discuss the “essential character” analysis for purposes of classification under GRI 3(b). See, i.e., Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-38 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). “[E]ssential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Home Depot USA, Inc. v. United States, 427 F. Supp. 2d at 1293, quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971). The court stated specifically in Home Depot USA, Inc. v. United States, “[a]n essential character inquiry requires a fact intensive analysis.” 427 F. Supp. 2d at 1284. Therefore, a case-by-case determination on essential character is warranted in this situation.
The bulk and weight of the picture frames are composed of zinc alloy and lead crystals. The lead crystals are the most valuable components of the subject picture frames and are what imparts the frames with visual impact. These decorative lead crystals likely increase the overall value and marketability of the frame and are the decisive factor in a consumer’s decision to ultimately purchase the product. The zinc alloy base metal backing provides the core, stability and support for the frames, but the lead crystals are indispensable to their intended use as a decorative picture frame.
Accordingly, we determine that the lead crystals of items Model # 25473-BA and Model # 25544-BA impart the “essential character” of the two picture frames. The primary function of the “Round Jeweled Frame,” Model # 25473-BA, and the “Oval Jeweled Frame,” Model # 25544-BA, are to decoratively display photographs. Since the lead crystals accomplishes the primarily decorative function of these products, they impart the “essential character” of the merchandise.
This conclusion is supported by the analyses in similar cases dealing with traditional picture frames, wherein the merchandise is typically classified according to the frame portion of the overall product. In accordance with the “essential character” analysis, above, we find that the lead crystals of items Model # 25473-BA and Model # 25544-BA impart the “essential character” of these two picture frames. Once the essential character of an article has been determined, the whole of the article is to be classified as if it consisted of the element that imparts the essential character. Accordingly, the articles are classifiable in subheading 7013.91.50, HTSUS.
You believe that the holding in Structural Industries v. United States, 360 F. Supp. 2d 1330 (Ct. Int’l Trade 2005), requires a different outcome. We disagree. Structural Industries regarded a “frameless” photo frame consisting of a masonite back, glass cover and four metal clips. It was in this scenario, where there was absolutely no decorative element to the frame, that the court emphasized the character of the backing. In other words, the merchandise at issue in Structural Industries is not substantially similar to the photo frames currently under review. Thus, the analysis in Structural Industries is not instructive with respect to the facts before us.
HOLDING:
By application of GRI 3(b), items Model # 25473-BA and Model # 25544-BA are classified in heading 7013, HTSUS, and specifically in subheading 7013.91.50 as: glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes . . .: other glassware: of lead crystal: valued over $5 each. The general duty rate is 6% ad valorem.
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 N045826, dated December 18, 2008, is hereby AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Faciliation Division