Application for Further Review of Protest No: 0901-08-100182; Wooden Photo Frames

HQ H053977 January 11, 2010 CLA-2 OT:RR:CTF:TCM H053977 TNA CATEGORY: Classification TARIFF NO.: 4414.00.0000 Port Director Buffalo Service Port U.S. Customs and Border Protection 726 Exchange Street, Suite 400Buffalo, NY 14210 Re: Application for Further Review of Protest No: 0901-08-100182; Wooden Photo Frames Dear Port Director: The following is our decision regarding the Application for Further Review (AFR) of Protest no. 0901-08-100182, timely filed on May 1, 2008, by Mohawk Customs and Shipping, LLC, on behalf of K-2 Industries, Inc. The AFR concerns the tariff classification of wooden photo frame keep boxes, under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The merchandise at issue was listed on the commercial invoice as a “wooden photo frame.” The frames consist of an outer wooden frame that surrounds a glass pane. Together the frame and the pane function as a lid that open to allow a picture to be inserted into an internal mat. The mat is square in shape and uses four pins to hold a picture in place. The inside of the photo frame is also decorated with a small, jeweled copper heart pendant attached to a ribbon. The pendant is held in place in one corner of the frame with a pin. The word “mother” is etched on the glass pane and various phrases appear on the inside mat cut out. This line of frames has various themes; one says “Mother,” another “Family,” a third “Friends,” and so forth. The back of the frames are made of wood and have a picture frame stand that opens to hold the frames on a table or other horizontal surface. In addition, four serrated hooks attached to the back of the frames to allow them to be mounted on a wall either horizontally or vertically. Altogether, the subject merchandise measures 11.5 inches in width by 9.5 inches in height. Marketing literature states “regard the one you love the most, celebrate her very being that will last a lifetime. KeepBox Frame is a great way to display picture with an accent Heart Pendant and Glass Etching with the word “Mother” upon it. This is a very unique picture frame celebrating Moms and those who are like Mother to us.” On May 22, 2007, these wooden photo frames were entered under subheading 4414.00.00, HTSUS, as wooden frames for paintings, photographs, mirrors or similar objects. CBP liquidated the entry on April 4, 2008 as entered. K-2 Industries, Inc. filed its protest on May 1, 2008. ISSUE: Whether the wooden frames in the shape of a box should be classified under heading 4414, HTSUS, as a wooden frame for photographs and similar objects, or whether they should be classified under heading 4420, HTSUS, as a jewelry box, silverware chests, tool or utensil cases and similar boxes? LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 0901-08-100182 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with prior CBP rulings classifying similar merchandise. Specifically, the Protestant alleges that two prior New York Rulings (“NY”) classify similar merchandise under subheading 4420.90.6500, HTSUS. See NY 865249, dated August 1, 1991, and NY C88510, dated June 18, 1998. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. 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 their appropriate order. The 2007 HTSUS headings under consideration are the following: 4414.00 Wooden frames for paintings, photographs, mirrors or similar objects * * * * * * * * * * * * 4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: 4420.90 Other: Jewelry boxes, silverware chests, cigar and cigarette boxes, microscope cases, tool or utensil cases and similar boxes, cases and chests, all the foregoing of wood: Other: 4420.90.65 Lined with textile fabrics In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or 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 EN for heading 4414, HTSUS, states, in pertinent part, the following: This heading covers wooden frames of all shapes and dimensions, whether cut in one piece from a solid block of wood or built up from beadings or mouldings. The frames of the heading may also be of wood marquetry or inlaid wood. The articles of this heading may be made of ordinary wood or of particle board or similar board, fibreboard, laminated wood or densified wood… * * * * * * * Frames remain in this heading if fitted with backs, supports and plain glass. * * * * * * * * The EN for heading 4420, HTSUS, states, in pertinent part, the following: This heading covers panels of wood marquetry and inlaid wood, including those partly of material other than wood.  The articles of this heading may be made of ordinary wood or of particle board or similar board, fibreboard, laminated wood or densified wood (see Note 3 to this Chapter).  It also covers a wide variety of articles of wood (including those of wood marquetry or inlaid wood), generally of careful manufacture and good finish, such as: small articles of cabinetwork (for example, caskets and jewel cases); small furnishing goods; decorative articles. Such articles are classified in this heading, even if fitted with mirrors, provided they remain essentially articles of the kind described in the heading. Similarly, the heading includes articles wholly or partly lined with natural or composition leather, paperboard, plastics, textile fabrics, etc., provided they are articles essentially of wood. The heading includes:  (1)   Boxes of lacquered wood (of the Chinese or Japanese type); cases and boxes of wood, for knives, cutlery, scientific apparatus, etc; snuffboxes and other small boxes to be carried in the pocket, in the handbag or on the person; stationery cases, etc.; needlework boxes; tobacco jars and sweetmeat boxes. However, the heading excludes ordinary kitchen spiceboxes, etc. (heading 44.19)… K-2 Industries argues that the subject merchandise was misidentified on the invoice as a photo frame. It states that the item is in fact a Keep Box used to hold photos and mementoes, and that it functions as a shadow box display. As a result, K-2 Industries argues that its merchandise should be classified under heading 4420, HTSUS, which provides for different types of boxes. In support of its argument, the company cites to New York Ruling Letters (“NY”) C88510 and NY 865249. In NY C88510 CBP classified a shadow box display case that had a rectangular wooden frame with a shallow enclosure in heading 4420, HTSUS. The item had a removable fiberboard back, glass front, and was designed to hold and display small collectibles such as sea shells. In NY 865248, CBP classified a wooden photo frame and box in heading 4420, HTSUS. That item consisted of a box that could be used as storage for three dimensional items and had a photo frame for a lid. Headings 4414 and 4420, HTSUS, are principal use provisions. For articles governed by principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use “is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind. While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the CIT has provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). In prior rulings, CBP has classified items similar to the subject merchandise under Heading 4414, HTSUS. For example, NY K82972 classified a shadow box photo frame. The merchandise there was a rectangular painted wood fiberboard box frame with an easel back. It had a hinged wood-framed, glass-covered opening in the front, and a wood backing covered with fabric on the inside. The fabric was folded and designed to hold various-sized photographs. CBP classified the item in heading 4414.00.0000, HTSUS. NY N013568 classified shadow box frames. There the item consisted of a hardwood frame fitted with a glass cover and a fiberboard backing that was covered with foam and canvas. The item was designed to display photos, artwork, butterflies, memorabilia or similar thin items. CBP classified the item in heading 4414.00.0000, HTSUS, in that case as well. The submitted marketing information identifies the subject merchandise as a picture frame and emphasizes its ability to display pictures. No mention is made of storing or displaying anything other than pictures. Furthermore, no depth is listed on its dimensions. Therefore, consumers will principally use the subject merchandise to display photographs. As such, they are distinguishable from the merchandise of NY C88510 and NY 865249. As a result, the frames are classified under heading 4414, HTSUS, as a wooden frame for paintings, photographs, mirrors or similar objects. HOLDING: By application of GRI 1, the wooden photo frames are classified in heading 4414, HTSUS, specifically under subheading 4414.00.0000, which provides for: wooden frames for paintings, photographs, mirrors or similar objects. As such, the applicable duty rate in effect at the time of entry was 3.9% ad valorem. You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP 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 and Trade Facilitation Division