Slip-Op. 02-141 UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: CARMA N, CHIEF JUDGE

___________________________________ STRUCTURAL INDUSTRIES, INC., : : Plai ntiff, :

: v. : Court No. 00-05-00203 : UNITED STATE S, : : Defendant. : ___________________________________: [Plaintiff’s motion for summary judgment is denied and D efendant’s cross-motion for summary judgment is granted.] Fitch, King

and Caffen tzis (Ja mes Caffe ntzis) , New York, New York, for Plaintiff. Robert D. McCallum

, Jr. , Assistan

t Attorne y G eneral ; John J. Mahon , A ct in g A tt or ne yin-Charge, I

nternat ional Tra de Field Office ; Jack S. Rockafellow , Attorney, Commercial Litig ation Br

anch, Civil Division, United Sta tes Depa rtment of Justice; Beth C. Brotman , Attorney, Off

ice of Assistant Chief Counsel, International Tra de Litigation, United States Customs Ser

vice, Of Counsel, f

or Defe ndant. Dated: December 4, 2002Court No. 00-05-00203 Page 2

O PINI ON C ARMAN , C HIEF J UDGE : Plaintiff Structural Industries, I nc. (“Plaintiff”) moves for summary judgment and Defendant United States (“Def endant”) cross-moves for summary judgment. Plaintiff challenges the Customs Service’s (“Customs”) classification of fr ames consisting of a flat glass cover , a masoni te board , and a se

t of four metal cli ps. This Cou

rt has jur isdiction t o review this matter under 28 U.S.C. § 1581(a) (2000). The Court denies Plaintiff’s motion for summary judgme

nt and grants Defendant’s cross-motion for summar y judgment ba sed on the reasons set forth below.

B ACKGROUND The subject merchandise is frames comprised of thre e components: a flat glass cover, a masonite board, and four metal clips. (Pl.’s Statement of Undisputed Facts ¶¶ 2- 3; Def.’s Resp. to Pl.’s Sta

tement of Undispute d Facts ¶

¶ 2-3.) T he pictur e or othe r docume nt to be dis

play ed is placed b etween

the gla ss cover

and mason

ite boar d, while the metal c lips hold the document , glass, and masonite together. Plaintiff markets some or a ll of the subject merchandise under the name “Euro Clip.” (Def.’s Statement of Undisputed Fac ts ¶ 2; Pl.’s Resp. to Def.’s Statement of Undisputed Facts ¶ 2.) Plaintiff’s catalog adve rtises the merchandise as follows: “Smooth, polished edge glass, hardboard ba ck, and chrome clips provide a clean and unobtrusive se tting for pho tos and

art wor k.” (St ruc tur al I ndu s. E uroClip Catalo g, D ef. ’s C ros s-M ot. for Summ . J. Attach. A (Jun. 7, 2002).) For convenience, the Court will refe r to the subject merchandise as the Euro Clip.Court No. 00-05-00203 Page 3

In 1999, Customs classified and liquidated the Euro Clips under subheading 7013.99.40 of the Harmonized Tariff Schedule of the United States (“HT SUS”), if valued not over $0.30 each, and 7013.99.50, HTSUS, if valued over $0.30 each but not over $3.00 each. (Pl.’s Mot. for Summ. J. at 1; D ef.’s Cr

oss-Mot. f

or Summ. J. at 4 .) The du ty r ates wer e 38 perc ent ad valorem and 30 pe rcent ad valorem , respectively . ( Id. ) Heading 7013 covers “glassware of a kind used for . . . indoor decoration.” Plaintiff filed a protest, which was de nied. (Pl.’s Summons at 1.) Plaintiff then commenced th

is action o

n May 3, 2000 af

ter pay ing all the liquida

ted dutie s.

S TAND ARD O F REVIEW This Court r

eviews Cu stoms’ det

erminati ons de novo

. See28 U.S.C. § 2640(a)(1) (stating that in cases contesting the denial of a protest, the Court makes “its determinations upon the basis of the record before the cour t”). A party ’s summary judg ment motion should be granted if the record before the Court shows that “there is no genuine issue as to any material fact and that the moving pa

rty is entitle d to a judg

ment as a matter of law.” USC IT R. 5 6(c); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). When determining under which of two possible classifications the merchandise falls, the Court must construe the releva nt classification headings, and determine what the me rchandise is. See Bausch & Lomb Inc. v. United States , 148 F.3d

1363, 1364 -65 (Fe d. Cir. 199 8). The f irst step i s an issue

of law wh

ile the second is an issue of fact. See id. at 1365; Rollerblade, Inc. v. United States , 112 F.3d 481, 483 (Fed. Cir. 1997). The Court then decides the ultimate issue of which classific ation the merchandise properly

falls, which is a question of law. See Bausch & Lomb Inc. , 148 F.3d at 1365-66. In the present ca se, the parties agree as to wha t the merchandise is. This Court mayCourt No. 00-05-00203 Page 4

grant summary

judgment “when there is no genuine dispute a s to the underlying factual issue of exactly what the merc

handise is.” Id. at 1365; see also Brother Int’l Corp. v. United States , No. 00-01-00007, 2002 Ct. Intl. Trade L EXIS 74, at *5-6 (Ct. I

nt’l Trade July 31, 2002). There fore the Court’s task is to construe the relevant classification heading s and decide on summary judgment the proper classification under which the me rchandise falls. See Bausch & Lomb Inc. , 148 F.3d at 1366.

P ARTIES ’ C ONTENTI ONS I. Plaintiff’s Contentions Plaintiff disagrees with Customs’ classification of the subject merchandise unde r heading 7013, HTSUS. Plaintiff argues that the merchandise is properly classified under either heading 7006, 7020, or 4421, HTSUS. (Pl.’s M. for Summ. J. at 4.) Heading 7006 covers “glass . . . bent, edgeworke d, engr

aved, dr illed, enameled or otherw ise worke d, but not f

ramed or fitted wit h other materials.” Heading 7020 cover s “other articles of glass.” Hea ding 4421 covers “other article s of wood. ” In

support of

its position , Plaintiff

advanc es two ar

guments

. First, Plaintiff contends that if the Court finds that the glass component provides the Euro Clip with its essential character, then the subject merchandise should be cla ssified under heading 7006 or 7020. (

Id. ) Relying upon the

General Rules of Inter

pretation (“GRI”) a

ccompanying

the HTSUS, Plaintiff maintains that the merchandise should be classified on the basis of the component that gives the Euro Clip its essential character. ( Id. at 5.) Assum ing arguendo that the glass component provides the essential charac ter, Plaintiff asserts that heading 7013 is not the
pr op er gl as s c la ss if

ic at io n f or th e s ub je ct me rc ha nd is e. Pl ai nt if f s ta te s t ha t t he gl as s i s m er el y aCourt No. 00-05-00203 Page 5

1 The Explanatory Notes ar e the official interpretation of the scope of the Ha rmonized Commodity

Description and Co ding Sy stem, whic

h served as the ba sis for the

HTSUS. This Court has previously held that while the Explanatory Notes “do not constitute controlling legislative history, they

nonetheless are intended to clarify the HTSUS subheadings and to offer guidance in interpreting its subheading s.” Jewelpak Corp. v. United States , 97 F. Supp. 2d 1192, 1196 n.6 (Ct. Int’l Trade 2000) (interna l citations and quotations omitted).

2 Under the HTSUS, he ading 4 414 cove rs “[w]oode

n frame s for pai

ntings, p hotogra phs, mirrors or similar objects.” part of the frame and heading 7013 does not encompass parts of glass articles. ( Id. ) Additionally, Plaintiff argue s that Customs mistakenly classified the subject mercha ndise under a subheading that covers certain other goods made of the same material, as the glass compone nt rather than classify

ing them based on the component providing the essential cha racter. ( Id. at 6.) Plaintiff cites the Harmonized Commodity Description and Coding System, Explanatory Notes (2 nd ed. 1996) (“Explanatory Notes” or “EN”) 1 , EN 70.13 for support, arguing that the glass does not give the whole Euro Clip the character of glass articles as required by the EN. (

Id. at 7.) Plaintiff further contends that the glass mere ly protects t he imag e and doe s not give the Euro C lip the character of a “dec orative glass article” as Plaintiff say s is required by EN 70.13. ( Id. at 8.) Plaintiff cites the language of EN 70.06 whic h covers “glass for photogra ph frames” and which states that if the glass is set in wood and designed for fr aming photographs, pictures, etc., then the article is classified under heading 44.14. 2 ( Id. ) Plaintiff reasons that but for the absence of a border, the Euro Clip would be classified under heading 4414 according to EN 70.06, instead of being c onsidere d “decorative” glass. If the gl ass is not c onsidere d “decorative” when it ha s a border, Plaintiff continues, then it would not become “decorative” w hen the metal clips are substituted for the border. ( Id. at 9.) According to Plaintiff, the Euro Clip does not have the charac ter of glass arti cles bec ause only the mason

ite and me

tal clips a re absol utely necessa ry toCourt No. 00-05-00203 Page 6

display the image

or document. (

Id. ) Plaintiff’s second argument is that the masonite backing of the Euro Clip gives the product its essential character and theref ore the proper classification is under subheading 4421.90.98 as “other articles of wood: other: other.” ( Id. at 9-1 0.) Pl ainti ff sta tes th at the design of the masonite makes the product what it is; the masonite is cut to accept the metal clips and join all the components together. ( Id. at 10.) The masonite is the component that allows the image to be display

ed, which can be done without the protective gla ss cover. ( Id. ) Plaintiff ref ers to Cu sto ms H ead

qua rte rs R ulin g ( “HQ ”) 0 769 98 ( Oct . 23 , 19 85) , Pl. ’s M . fo r Su mm. J

. Attach. 1, in which a frame with a glass cove r, hardboard backing, and metal c lips was classified under the Tariff Schedule of the United States (“TSUS”) equivalent to subheading 4421.90.98. ( Id. ) In conclusion, Plaintiff argue s that if the Court finds that the essential character is derived from the glass component, then the proper classifica tion of the subject merchandise is either subheading 7006.00.40, HTSUS, or 7020.00.60, HTSUS. Alternatively , if the Court finds that the masonite component provides the essential character, the n Plaintiff contends the proper classification is subheading 4421.90.98, HTSUS. ( Id. at 11.) II. Defendant’s Contentions Defendant maintains that Customs properly classified the Euro Clip under subheading 7013.99 and argues that the glass compone nt provides the essential character to the mercha ndise. (Def.’ s Cross-Mot. for Summ. J. at 7.) De fendant present s four ar

guments in support

of its contention that the Euro Clip is properly cla ssified under subheading 7013.99. First, Defendant refers this Court to Customs’ ruling in HQ 962903, Doc. No. CL A-2Court No. 00-05-00203 Page 7

RR:CR:GC 962903 BJB, 2000 U.S. Customs HQ LEXIS 192 (Apr. 18, 2000), Pl.’s Resp. To Def.’s Cross-M. For Summ. J. Attach. A, which involved merchandise that is essentially the same as the merchandise in this case. ( Id. at 9.) In that ruling, Customs classified that merchandise under subheading 7013.99. ( Id. at 9-10.)

Defend ant state s that HQ 9 62903 is entitled to deference under Skidmore v. Swift & Co. , 323 U.S. 134 (1944). ( Id. (citi ng United States v. Mead Corp. , 533 U.S. 2 18 (2000) ).) Def endant then extensi

vely discusse s Customs’ rationale and concludes that the ruling should be ac corded respect and defere nce by the Court. ( Id. at 9-15.) Second, Defendant asserts that the glass compone nt provides the essential character of the Euro C lip. Defend ant argu es tha t the m asoni te pro vides no mo re actu al sup port f or the image than the glass does. (

Id. at 16.) Further, Defend ant mainta

ins that the

masonite i s not intended to have the importance of a “standard picture frame” in that it does not enhance the image or provide surrounding structural support, i.e., a border. ( Id. ) Defendant addresses Plaintiff’s “implied assertion that the glass plate is unnecessary for displaying

images” by

noting that the metal clips would not prevent twisting, fading, or other distortions of the imag e by themselves. ( Id. at 17.) Defendant contends the primary reason for the Euro Clip is to make a pleasing and artistic presentation of an image and cites Plaintiff’s a dvertising for the Euro Clip as support. ( Id. at 18.) Defendant believes that in addition to the support it provides, the quality and protective nature of the glass are of overriding importance. ( Id. ) For instance, Defendant presumes a scratch on the surface of the glass would affect marketa bility more than a scra

tch on the masonite. (

Id. ) Third, Defendant contends subheading 7013.99 is the most appropria te classification andCourt No. 00-05-00203 Page 8

Plaintiff has faile d to demonstrate tha t the esse ntial cha racter is provide d by

the mason

ite component. In response to Plaintiff’s emphasis upon the de sign of the masonite to accept the metal clips, Defendant notes that the masonite is but one of three interdepe ndent parts without which the whole ceases to function. ( Id. at 20.) D efenda

nt states, “[T]he impor

tance of the gla ss in [the] Euro Clip should not be eclipsed by the masonite merely because of the particularized role which the slots play in helping secure the metal clips.” ( Id. ) Additionally, Defe

ndant reasons that the relative value contributed by the components shows there is no significant difference between the masonite a nd the glass plate. (

Id. ) In response to Plaintiff’s arg ument that the glass comp onent is no more det erminati ve of cla ssificat

ion in the c ase of the Euro Clip than it is for frames with borders, Defendant points out that the glass is more sig nificant in the case of these frameless or border less holders. (

Id. at 22.) Fourt h, Defe ndant argues t he sub ject m erchan dise s houl d not be clas sifi ed und er head ings 7006 or 7020. Defendant asserts that heading 7006 e xcludes glass that is fitted with other materia ls and Plai

ntiff’s r eading of GRI 3(b) wou ld lead to an absur d result b ecause

the gla ss in the present case is fitted with other materials. ( Id. at 23.) Contrary to Plaintiff’s tre atment of the components as if they c ould each function as a separate par t, Defendant states that the components are necessarily intertwined and inseparable. ( Id. ) As to heading 7020, Defendant contends that this is

a catch -all prov

ision that a

pplies onl y w hen the me

rchandi se does not fall under a more specific provision of Chapter 70. ( Id. ) According to Defendant, since the goods fall under heading 7013, heading 7020 does not apply. (

Id. ) In conclusion, Defenda

nt seeks denial of Plaintiff’s summary judgment motion and a grant of its own cross-motion affirming Customs’ denial of Plaintiff’s protest. ( Id. )Court No. 00-05-00203 Page 9

3 An eo nomine provision is a tariff provision that describes the item by a specific name. See Casio, Inc. v. United States , 18 Ct. Int’l Trade 952, 954 n.4 (1994). D ISCU SSI ON I. Customs pro

perly de termined

that the gla

ss compon ent of the

subject m erchand

ise provi des it s esse ntia l char acter under GRI 3(b). Customs must u se the GRI s to classi fy the subje ct merchandise be cause the merchandise do es no t f al l i nt o a ny eo nomine provision of the HT SUS. 3 Customs followed GRI 3(b) and determined that the glass component provides the essential cha racter of the product. As noted, Customs classified the subject merchandise under subheading 7013.99.40, HT SUS, if valued not over $0.30 each, and 7013.99.50, HTSUS, if valued over $0.30 ea ch but not over $3.00 each. Heading 7013 covers “glassware of a kind used for table, kitchen, toilet, office , indoor decoration or similar purposes.” This Court finds Customs’ determination that the glass component gives the merchandise its essential character is prope r. Under GRI 2(b), “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of r ule 3.” GRI 2(b). GRI

3 provides the method of classification in cases where “g oods are, prima faci e , classifiable under two or more headings.” GRI 3. I

n the present case, the subject merchandise c ould be classified under either subheading 4421.90.98 as “other articles of wood: other ” or subheading 7013.99 as “glasswa re of a kind use d for . . . i

ndoor de coration.” Ther

efore, the merc

handise i s prima faci

e classifi able under at least two headings. GRI 3(a) explains that where two or mor e headings are potentially applicable, the more specific heading is preferr ed. GRI 3(a) also states that whe n the headings refer to only part of the materials in composite goods, then the potential headings are considered equally

specific and weCourt No. 00-05-00203 Page 10

must proceed to GRI 3(b). GRI 3(b) provides that “composite goods consisting of differ ent materials or made up of different components . . . shall be cla ssified as if they consisted of the materia l or component whic

h gives t hem their essentia l chara cter, in sofar a s this crit

erion is applicable.” GRI 3(b) . When the goods cannot be classified under GRI 3(a) or (b), GRI 3( c) offers a default classification: “under the he ading which occurs last in numerical order among those which equally mer

it consideration.” GRI 3(c). The parties in this case agree that the subject merchandise are composite goods made up of different components. (Pl.’s Statement of Undisputed Facts ¶ 2; Def.’s Resp. to Pl.’s Statement of Undisputed Facts ¶ 2.) The Explanatory Note to GRI 3(b) states that “[t]he factor which determines essential character will vary

as between different kinds of goods. I t may, for example, be de termined by the nature of the material or component, its bulk, quantity , weight or value, or by the role of a constitue nt materi al in rela

tion to the u se of the

goods.” EN to Rule 3 (b), (VI

II ). Bey ond this interpretation of the term “essential character,” there is little guidance as to the meaning of the term under the HTSUS. See Better Home Plastics Corp. v. United States , 916 F. Supp. 1265, 1267 (Ct. Int’l Trade 1996). I n the past, this Court has turned to case law which addressed the definition of “essential character” unde r the TSUS for guidance. See 3G Mermet Fabric Corp. v. United States , 135 F. Supp. 2d 151, 158-59 (Ct. Int’l Trade 2001); Better Home Plastics Corp. , 916 F. Sup

p. at 1267 . Those c ases hel d that the essentia l chara cter of an artic le is “tha

t which is indispensable to the structure, core or condition of the article, i.e. , what it is.” Oak Laminates D/O Oak Materials Group v. United States , 628 F. Supp. 1577, 1581 (Ct. Int’l Trade 1984) (quot ing United China & Glass Co. v. United States , 293 F. Su pp. 734, 73 7 (Cust. Ct. 1968); 3G Mermet Fabric Corp. , 135 F. Supp. at 159. This “essential character” test is a fa ct-intensiveCourt No. 00-05-00203 Page 11

analysis. See Toy Biz, Inc. , No. 96-10-02291, 2002 Ct. Intl. Trade L EXIS 80, at *32 (Ct. I

nt’l Trade July 30, 2002). In terms of the structural support to allow an image or document to be displayed, both the glass a nd masonit

e of the E uro Clip ap

pear to b e equall

y imp ortant. Wh

ile the ma sonite contributes a greater amount to the total manufac tured cost of the Euro Clip than the glass, the difference between the amount contr ibuted by the masonite and glass is slight (i.e., approximately 1 perce

nt). (Def.’s Statement of Undisputed Facts ¶ 8; Pl.’s Resp. to Def.’s Statement of Undisputed Facts ¶ 8.) Furthermore, the relative cost of the component alone is not dispositive in light of other factors. See Better Home Plastics Corp., 916 F. Supp. at 1268. The glass component in the present case serve s to protect the image or document held by the Euro Clip. (Def.’s Statement of Undisputed Facts ¶ 7; Pl.’s Resp. to Def.’s Statement of Undisputed Facts ¶ 7). It pre

vents the image or document from fading , twisting, being damaged, or be ing scratched by

the metal clips or some other source. Additionally , it allows the viewer to see the image or docume

nt without d

istracti on. The glass is the componen

t visible to

the viewe

r, while the mason

ite is cove

red by the imag e being

held by the produ

ct. As note d by

Defend ant, due t o the aesthetic function that the glass serves, a sc ratch on the glass is more likely to affect the

mar ketabi lity of t he E uroClip tha n a s cra tch on t he m aso nite . (D ef. ’s C ros s-M ot. for Summ . J. at 18.) A fter ha

ving exam

ined all o f these f

actors, the Court f

inds that Cu stoms prop erly determined that the glass component provides the subject merc handise with its essential character.Court No. 00-05-00203 Page 12

II. Customs properly classified the subject merchandise under subheading 7013.99, HTSUS. Plaintiff argues that if this Court finds the glass provides the essential cha racter, then the subject merchandise should be classified under either subhe ading 7006.00.40, HTSUS or 7020.00.6 0, HTSUS. (

Pl.’s Mot. f

or Summ. J. at 2 .) Subhea ding 700 6.00.40 c alls for a duty rate of 4.9 pe rcent ad valorem while subheading 7020.00.60 has a duty rate of 5.3 percent or 5 percent depending on the date of e ntry. Defe

ndant claims the proper classification is under subheading 7013.99, HTSUS. This Court holds that Customs was correct in classify ing the subject merchandise under subheading 7013.99. Subheading 7006.00.40 applies to “[g]lass of heading 7003, 7004 or 7005 bent, edgeworked, engraved, drilled, ena meled or otherwise worked, but not framed or fitted with other materials: Other.” Subheading 7006.00.40, HTSUS. I n discussing glass with worked edge s, EN 70.06(B) states that the heading includes “[g ]lass with worked edges . . . thus acquiring the charac ter of a rticles s uch as . . . glass f

or photog raph fr ames.” E N 70.06(B ). It

goes on to note that the h eading

“covers not only

flat gla ss in the form of semi -finishe d products (e.g ., sheets without any particular

purpose), but also articles of flat glass desig ned for a specific purpose, subject to their being neither framed, bac ked, nor fitted with material other than glass.” EN 70.06. The Court finds that the subject merchandise does not fall under Plaintiff’s alterna tive classification of subheading 7006.00.40. Subheading 7006.00.40 spec ifically excludes glass that is “framed or fitted with other materials.” “Fitted” is defined as “shaped to conform to the lines of something else.” W EBSTER ’ S T HIRD N EW I NT ’ L D ICTIONARY 860 (1981 ); see North Am. Processing Co. v. United States , 56 F. Supp. 2d 1174, 1179 (Ct. Int’l Trade 1999) (a llowingCourt No. 00-05-00203 Page 13

resort to a tariff term’s common and commercial mea ning and reliance upon dictionaries wher e the term’s meaning is not clearly defined by the H TSUS or legislative history). The glass in the present case is shaped to conform to the other components of the Euro Clip and is held to the masonite backing by

the metal clips. Thus classification under subheading 7006.00.40 would be inappropriate. Classification under subheading 7020.00.60 also would be inappropriate. He ading 7020 is a “basket provi sion” whic h is used on

ly w hen the it em is not pr

operly classifi able unde

r some other heading of the HTSUS. See Pomeroy Collection, Inc. , 2002 Ct. Int’l Trade L EXIS 57, at *20; EN 70.20 (“This heading covers glass articles . . . not covered by other hea dings of this Chapter or other Chapters” ). As disc ussed bel ow, this Cou

rt finds that the sub

ject mer chandise is
pr op er ly c la ss if

ie d u nd er he ad in g 7 01 3 a nd th er ef or e s ub he ad in g 7 02 0. 00 .6 0 d oe s n ot ap pl y. Customs classified the subject merchandise under subheading 7013.99 a s glass for indoor decoration. EN 70.13 lists examples of glass for indoor decoration, including “vases, ornamental fruit bowls, statuettes, fancy articles . . ., table-centres . . ., aquaria, inc ense burners, etc., and souvenirs bearing views.” EN 70.13(4). Othe r examples listed of items falling under heading 7013 are paperweights, container s for pins, pen-tray s and ashtrays, a ssorted table or kitchen glassware, and soap dishes and other toilet ar ticles. EN 70.13(1)-(3). EN 70.13 notes that the article s may

be of ord inary glass a nd/or col orless. E

N 70.13. I

t further states “[a ]rticles o f glass combi ned wi th ot her mat erial s (bas e meta l, woo d, etc .), are class ified in th is hea ding onlyif the glass gives the whole the chara cter of glass articles.” EN 70.13. Plaintiff maintains in its summary judgment motion and its response to Defe ndant’s cross-motion that the subject merchandise cannot be classified unde r heading 7013 because theCourt No. 00-05-00203 Page 14

Euro Clip is not a “decorative glass article.” (Pl.’s Mot. for Summ. J. at 8; Pl.’s Mem. in Opp’n to Def.’s Cross-Mot. for Summ. J. at 4-5.) Plaintiff asserts, “In the abse nce of any

decorative
componen

t, classif ication mu st be base d upon the primary purpose f

or which the [Euro Cl ip] is purchased. The glass cover doe s not provide any dec oration. Neither do the other components. These articles are strictly

intended for utilitarian purposes in displaying the photograph.” (Pl.’s Mem. in Opp’n to Def.’s Cross-Mot. for Summ. J. at 5.) In this rega rd, Plaintiff challenges HQ 962903, a ruling involving products identical to the subject merchandise and which Defendant claims is entitled to deference. ( Id. at 2; D ef.’s C ross- Mot. for Su mm. J . at 9- 10.) In t hat ru ling, Customs relied upon GRI 3(b) and determined that the g lass component provided the essential character to the items. SeeHQ 962903, 2000 U.S. Customs HQ LEXI S 192, at *2-6, Pl.’s Resp. to Def.’ s Cross-M. for Summ. J. A ttach. A a t 2-4. Customs then fo cused up on lang uage in heading 7006 and E

N 70.06 ind

icating that cove rage by he ading 7 006 is subje ct to the a rticle being neither framed, backe d, nor fitted with material other than glass. See id. at *8-9, Pl.’s Resp. to Def.’s Cross-M. for Summ. J. Attach. A at 4. Customs also quoted EN 70.13 and concluded “that the EN’s show that items which are composite ar ticles having the essential character of glass ar

ticles are described by

heading 7013.” Id. at *9, Pl.’ s Resp. to D ef.’s CrossM. for Summ. J. Attach. A at 5. Plaintiff ’s asser tion that the subject mercha ndise doe s not fall u

nder hea ding 701 3 is incorrect for the following rea sons. First, Plaintiff fails to consider that articles with utilitarian functions are not excluded from heading 7013, and in fac t many of the ar

ticles potentially falling under that classification have utilitarian functions, i.e., ashtray s, vases, soap dishes. Second, Plaintiff reads subheading 7013.99 as if it covers “dec orative glass” rather than “g lassware of theCourt No. 00-05-00203 Page 15

kind used f

or . . . indo or decor

ation.” U nder GRI 3(b), for classif

ication p urposes, the compo site good is treated as if it consists wholly of the component that provides its essential character. At the same time, the merchandise is to be classified based on the condition in which it is imported. See Mita Copystar Am. v. United States , 21 F.3d 1 079, 1082 ( Fed. Cir . 1994); Sarne Handbags Corp. v. United States , 100 F. Su pp. 2d 1126 ,1134 (Ct. Int’ l Trade 2 000). The Euro Clip is imported a s a comple

te artic le with thr

ee components. (D ef.’s Sta tement of Undispute d Facts ¶ 1; Pl.’s Resp. to Pl.’s Statement of Undisputed Facts ¶ 1.) Therefore, the Court looks at whether the subject merchandise as a whole may be considered “glassware of the kind used for . . . indoor decoration.” See Pomeroy Collection, Inc. v. United States , No. 99-0 2-00096, 2002 Ct. I ntl. Trade L EXIS 57, at *23 -25 (Ct. I nt’l Tra de June 19, 2002). The classif ication o f the pla

in glass , if imported separately , is irrelevant to the Court’s analy sis. See id. The Euro Clip is clearly use d for indoor decoration to hold images for display . Third, as discussed earlier, the subject merchandise does not fall under Plaintiff’s alternative cla ssifications of subheading 7006.00.40 or 7020.00.60. Based on the foregoing , the Court finds the subject merchandise was properly classified under subheadings 7013.99.40 and 7013.99.50, depending on va lue.Court No. 00-05-00203 Page 16 C ONCLUSI ON This Court finds Customs properly classified the subject mer chandise under subheading 7013.99.40, HTSUS, if valued not over $.30 each, and 7013.99.50, if valued over $.30 e ach but not over $ 3.00 eac

h. The Cou

rt denie s Plaintiff

’s motion f

or summar

y ju dgment a nd gra nts Defend ant’s cr oss-motion

for summa

ry judgmen t.

______________________________

Gregory W. Carman Chief Judge Dated: New York, New York