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HQ 968032

March 3, 2006

CLA-2 RR:CTF:TCM 968032 HkP


TARIFF NO.: 7013.99

Mr. Robert D. Stang
Greenberg Traurig, LLP
Attorneys at Law
800 Connecticut Avenue, NW
Suite 500
Washington, DC 20006

RE: Double Halo Suncatcher

Dear Mr. Stang:

This is in reply to your letter of September 9, 2005, to the U.S. Customs and Border Protection (“CBP”) office in New York, on behalf of RSR Industries, Inc. (“RSR”) (d/b/a/ “Echo Valley”), seeking a prospective binding tariff classification ruling under the Harmonized Tariff Schedule of the United States (“HTSUS”), and your letter of October 20, 2005, providing additional information, concerning the Double Halo Suncatcher (“Suncatcher”). Your letters, together with the sample submitted for examination, was forwarded to this office for response. In reaching our decision, we also considered the arguments made in a telephone call on February 17, 2006, and your additional submission, dated February 20, 2006.


The Suncatcher is a lawn or garden ornament that will be imported and sold by RSR, a lawn and garden ornament catalogue company. The sample provided consists of six metal (i.e., copper) components and one glass component. The glass component consists of a small multicolored glass globe with white “crystals” pasted in a “corkscrew” or “spiral” pattern on the inside and a screw hole in the bottom. The six metal components are: two circular metal tubes soldered together at their bottoms to create a double halo effect; one metal ring soldered to the outside top of the outermost circular metal tube; one metal flower petal; one screw extending vertically upwards from the bottom of the inner halo; and, one metal wire that surrounds the metal petal and the glass globe.

The outer metal “halo” has a diameter of approximately 6 ¾ inches, and the glass globe a diameter of 2 ½ inches. You state that the weight of the metal component is approximately 1.52 lbs, and the weight of the glass component is less than 1.3 lbs (the glass globe and the metal petal are glued together and cannot be weighed separately, and together weigh 1.3 lbs).

We note that the glass globe is colored. You have informed us that the glass component is not painted. The glass colorant is a granular mineral mixture added to the molten glass prior to molding/blowing. The dominant color in the glass, blue, is imparted by cobalt oxide. Other coloring agents in the glass are potassium sulfuric acid and potassium manganese acid. The glass component, which does not contain seeds or stones, is manufactured with a refining agent, antimony oxide, to stifle the formation of bubbles. Inside the glass globe are crystals, which you say emit a dim glow.

You have informed us that the Double Halo Suncatcher will be sold in two sizes: large and small. The abovestated description is of a small Suncatcher. The large size Double Halo Suncatcher has a 9-inch diameter and a 4-inch glass ball. For the large size suncatcher, the unit value of the metal component is approximately 69% of the FOB cost and the unit value of the glass component (including the crystals that emit the dim glow) is approximately 13% of the FOB cost. For the small size suncatcher, the unit value of the metal component is approximately 69% of the FOB cost, and the unit value of the glass component (including the crystals) is approximately 12% of the FOB cost. You have calculated that the value of the metal component is approximately 550% greater than the cost of the glass component. You state, and this office accepts for the purposes of this ruling, that the large and small Suncatcher are identical in all respects, but for their size.


Whether the Suncatcher is classifiable under heading 7013, HTSUS, which provides for glassware of a kind used for indoor decoration or similar purposes, or heading 8306, HTSUS, which provides for statuettes and other ornaments of base metal.


Classification of merchandise under the HTSUS is 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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither 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 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:
7013.99.1000 Glassware decorated with metal flecking ; ; glassware colored prior to solidification, and characterized by random distribution of numerous bubbles, seeds or stones, throughout the mass of the glass

Valued over $3 each:
Valued over $3 but not over $5 each

7013.99.9000 Valued over $5 each

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; : Statuettes and other ornaments, and parts thereof: 8306.29.0000 Other

Explanatory Note 83.06(B) provides that:

This group comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non-metallic parts) of a kind designed especially for decoration, e.g., in homes, offices, assembly rooms, places of religious worship, gardens.

You submit that the merchandise in question is an ornament of base metal, classifiable only in heading 8306, HTSUS, and cite two rulings in support of this position. In the first ruling cited, NY G86427, dated January 25, 2001, CBP classified a wire garden stake with gazing ball in heading 8306, HTSUS. We note that this ruling does not state the material composition of the gazing ball and thus, we are unable to conclude that it supports your position.

The second ruling you cite is NY F80731, dated December 9, 1999, in which CBP classified a garden ornament consisting of a steel stake topped by a crescent moon, star and a glass suncatcher with a Man-in-the-Moon face, in heading 8306, HTSUS, which provides for statuettes and other ornaments, of base metal. It is your position that the merchandise in NY F80731 and the sample you provided to this office are essentially the same for classification purposes, i.e., “a metal and glass garden ornament where the metal is the decorative item (as opposed to merely a component for supporting or framing the glass) that is at least co-equal with (if not superior to) the glass component for essential character purposes.” However, we find that the present case is distinguishable from that ruling because, in that instance, the metal stake was not simply holding a decorative glass ornament but also decorative metal ornaments – a metal moon and star, and the decorative effect was produced equally by the metal portion and the glass.

We find that the cited rulings do not bolster your position. However, we are of the opinion that the merchandise in question is prima facie classifiable in heading 8306, HTSUS, because of its base metal components.

We next consider heading 7013, 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)”. EN 70.13, HTSUS, provides in pertinent part, that:

This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:

(4) Glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table-centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views.

These articles may be e.g., of ordinary glass, lead crystal, glass having low coefficient of expansion or of glass ceramics They may also be colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass

Articles of glass combined with other materials (base metal, wood, etc.), are classified in this heading only if the glass gives the whole the character of glass articles.

The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157. The essential characteristics or purposes of the above listed exemplars are that they are of glass and they are decorative. Accordingly, we find the Suncatcher lawn ornament to be ejusdem generis with these exemplars and therefore prima facie classifiable in heading 7013, HTSUS.

GRI 3 provides in pertinent part that:

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:

The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings refer to only part of the materials or substances contained in mixed or composite goods or to part only on the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to the goods, even if one of them gives a more complete or precise description of the good.

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.

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Explanatory Note 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.” You state that “based on the cost, size, weight, visual appearance and use of the metal component versus that of the glass component, we believe there is no question that the product must be classified in the tariff heading for metal ornaments, subheading 8306.29.0000, HTSUS, which covers certain ‘ornaments, of base metal’.” However, we note that court decisions on essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the good. See Better Home Plastics Corp. v. U.S., 915 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997) (“Better Home Plastics”); 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); Avenues in Leather, Inc. v. U.S., 2004 Ct. Int’l Trade LEXIS 39, aff’d 2005 U.S. App. LEXIS 19816 (Fed. Cir. 2005).

You state that the metal component has a diameter more than twice as large as the glass component; the metal component is heavier than the glass component; and, the metal component is visually prominent and is not merely for support. Rather, it is essential to the aesthetics and design of the product in that the metal forms the “Double Halo” in “Double Halo Suncatcher”. Based on this information, you argue that the metal forms the essential character of this product or at most, the metal component and the glass component equally merit consideration, in which case the metal component must be preferred by virtue of GRI 3(c) and classified in subheading 8306.29.0000, HTSUS.

You reiterate these arguments in your letter of February 20, 2006, and also state that in Better Home Plastics, “the court noted that the ‘indispensable function’ of the plastic component along with a number of other factors (e.g., cost) ‘all combined to support the decision that the plastic liner provided in the essential character of the sets’. Better Home Plastics at 971.” It is your opinion that when other factors required for the essential character determination for the subject suncatcher (e.g., the size, cost, and weight of the components) are “all combined”, “it becomes clear that either the metal double halo must form the essential character of this product or at a minimum be considered co-equal with smaller, less costly and lighter glass component.” We point out that in Better Home Plastics, the court was of the opinion that the relative cost of the component parts was not dispositive; in fact, the textile shower curtain was more expensive than the liner. It was also more decorative than and of the same approximate size as the plastic liner, yet it was the liner that determined classification because the court felt that the liner, by itself, could serve the intended function of the set without the outer curtain. So too, in this instance, we are of the opinion that the glass component of the suncatcher can serve the intended function of the Double Halo Suncatcher, i.e., catching the sun, without the copper double halo.

You also argue in your February 20, 2006, letter that based on the “subsidiary” test in The Pomeroy Collection. Ltd. v. U.S., 336 F.3d 1370, 25 ITRD 1464 (2003), (“Pomeroy”), “the metal component is in no manner subsidiary to the glass component.” In support of this position you state that “the article is distinguishable as a double halo suncatcher and the metal component is the only component forming the product’s double halo.” However, we do not accept that the distinguishing characteristic of this suncatcher, that is, the “double halo”, is the same as the essential character of the suncatcher, that is, catching the sun. In addition, although the copper tubing may reflect sunlight during the daytime, we do not find the ability to reflect sunlight to be the same as the ability to catch sunlight. As a result, when we apply the subsidiary test of Pomeroy, we find that the metal component of the Double Halo Suncatcher is subsidiary to its glass component, despite being larger than the glass component and being the sole component forming the double halo. We have consistently held under GRI 3(b) that the essential character of a suncatcher is represented by its glass body and not its metal components. The glass body is the central feature of the article and the component that has the greatest interaction with the light to create the product’s decorative effect that is most appealing to the consumer. Insofar as other factors (quantity, bulk, weight, and value) are concerned with regard to the subject merchandise under consideration here, the available evidence also supports treating the glass component as being the component that provides the essential character. We note that the Double Halo Suncatcher is a lawn ornament that is advertised and sold as a suncatcher, with the metal components relegated to being a “copper globe holder”. Specifically, the Simply Backyards website (www.simplybackyards.com) advertises the Echo Valley Double Halo Illuminarie Suncatcher as “a copper globe holder featur[ing] a 4” diameter glass illuminary globe that glows in the dark and also catches the sun beautifully during the day.” We find that the decorative effect of the glass globe far outweighs that of the copper components, because not only does the glass globe catch the sun during the day causing the colors of the globe to change but the glow-in-the-dark crystals inside the globe causes the globe, but not the copper components, to be visible and provide decoration at night. You have not stated what causes the crystals to glow at night but all glow-in-the-dark features emit light after being energized. In this case, we logically assume this energy source to be the sun. We therefore find that the suncatcher is a lawn ornament and that “catching” the sun is its essential character. Therefore, the glass is the constituent material that is most important in relation to the use of this good. Your argument that the Double Halo Suncatcher should be classified based on its metal component because of its greater value, and because it is a “major and essential part of the product’s artistic element and design” and is “primarily aesthetic” clearly fails in light of all the other factors that prove that the glass is the more significant component that imparts the product’s essential character. See HQ 086166, dated April 9, 1990; HQ 960653, dated July 1, 1998; HQ 961039, dated July 1, 1998, HQ 961141, dated July 21, 1998; HQ 962136, dated December 9, 1998; HQ 962624, dated May 12, 1999; and HQ 966529, dated August 2, 2004.

Because the glass globe imparts the essential character to the Double Halo Suncatcher, it is classifiable 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)”, with further subheading to be determined by the value of the merchandise. Further, the Suncatcher is not excluded by EN 70.13, HTSUS, because the glass gives the whole article the character of a glass article. See The Pomeroy Collection, Ltd. v. United States, 336 F.3d 1370, 1373. We are of the opinion that the Suncatcher is not classifiable in subheading 7013.99.1000, HTSUS, because of the presence of fining agents, which are designed to preclude the formation of bubbles. See HQ 951783, dated February 2, 1993.

Finally, we note that, as stated above, the GRIs are applied in sequential order, beginning with GRI 1, to determine the classification of merchandise, and that this exercise ends once merchandise has been classified. In this instance the Suncatcher has been classified by application of GRI 3(b). Consequently, there is no need to classify at the GRI 3(c) level.


By application of GRI 3(b) we find the Double Halo Suncatcher to be classified in heading 7013, HTSUS, specifically in subheading 7013.99, HTSUS, with further subheading to be determined by the value of the merchandise.


Gail A. Hamill, Chief
Tariff Classification & Marking Branch

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