HQ W968441

February 8, 2007

CLA-2 RR:CTF:TCM W968441 KBR

CATEGORY: Classification

TARIFF NO.: 8413.70.2004

Matthieu L. Milgrom
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP
399 Park Avenue, 25th Floor
New York, NY 10022-4877

RE:     Stone Fountains

Dear Mr. Milgrom:

    This is in reference to your letter on behalf of GeoGlobal Partners LLC and Peaktop Technologies, Inc., dated July 13, 2006, to the Bureau of Customs and Border Protection (“CBP”), Director, National Commodity Specialist Division, New York, in which you requested a binding ruling concerning the classification of a two polyresin “stone” fountains under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You also provided part of one of the fountains as a sample for our review. The binding ruling request was referred to this office for reply.

FACTS:

The subject articles, two polyresin “stone” fountains, model numbers F414062CA and F50105BB, are imported from China. You state that Model F414062CA is a fountain designed to be placed outdoors and look like a slate wall with water running down its face. The dimensions of F414062CA are 26” in length, 5.6” in width and 29.9” in height. You state that Model F50105BB is a fountain designed to be placed outdoors and which looks like a stone two tiered pedestal round fountain. The dimensions of Model F50105BB are 26.7” in diameter and 61.8” in height. The slate/stone of the fountains is actually composed of limestone powder agglomerated with polyresin and reinforced by a woven fiberglass core which is molded to shape in a silicon mold. The water is moved by an electric, submersible pump placed in the base of the fountain.

You report the percentage by weight of the components for Model F414062CA to be 47.5% polyresin, 30.8% stone powder, 7.7% fiberglass and 14% pump/light/transformer. The percentage by weight of the components for Model F50105BB is 46.5% polyresin, 36.9% stone powder, 7.8% fiberglass and 8.8% pump. For Model F414062CA you report the cost of the pump/light/transformer to be $7.29 and the cost of the “stone” components to be $52.56. For Model F50105BB you report the pump to be $5.34 and the cost of the “stone” components to be $81.66.

You believe that the fountains should be classified in heading 8413, HTSUSA, specifically subheading 8413.70.2004, HTSUSA, as “[p]umps for liquids, whether or not fitted with a measuring device; liquid elevators; parts thereof: [o]ther centrifugal pumps: [o]ther: [s]ubmersible pumps.”

ISSUE:

Should the subject fountains be classified as a “pump” or as an article of artificial stone under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

    The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive nor legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

    The HTSUSA provisions under consideration are as follows:

6810         Articles of cement, of concrete or of artificial stone, whether or not reinforced:

            Other:

6810.99.0000             Other

8413        Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; parts thereof:

8413.70         Other centrifugal pumps:

8413.70.20             Other:

8413.70.2004                 Submersible pumps
    

The ENs for heading 6810, HTSUSA, state that:

Artificial stone is an imitation of natural stone obtained by agglomerating pieces of natural stone or crushed or powdered natural stone (limestone, marble, granite, porphyry, serpentine, etc.) with lime or cement or other binders (e.g., plastics). Articles of artificial stone include those of . terrazzo ., . granito ., etc.

*        *        *        *        *

The heading includes, inter alia, blocks, bricks, tiles; ceiling or wall mesh or lath (consisting of a wire framework combined with a predominating proportion of concrete); flagstones; beams; hollow flooring slabs and other constructional goods; pillars, posts, boundary stones; curbstones; piping; stair treads; railings; baths, sinks, water closet pans (bowls), troughs, vats, reservoirs; fountain basins; tombstones; standards, poles; railway sleepers; hovertrain guidetrack
sections; door or window frames; mantelpieces, window sills, door steps; friezes, cornices; vases, flower-pots, architectural or garden ornaments; statues, statuettes, animal figures; ornamental goods.

    The two instant fountains are composed of two distinct components, the polyresin “stone” and the electronic pump. The instant fountains are made of a limestone powder agglomerated with polyresin and reinforced with fiberglass. This falls within the description of heading 6810, above. The electronic pump falls within the description of heading 8413. GRI 2(b) directs that goods consisting of more than one material or substance are to be classified according to the principles of GRI 3, which provides, in pertinent part at GRI 3(a), that when two or more headings refer to part only of materials or substances in a composite good the headings are to be considered equally specific in relation to those goods.

GRI 3(b) provides that mixtures and composite goods consisting of different materials or components shall be classified as if the consisted solely of the material or component that which gives them their essential character. Explanatory Note VIII to GRI 3(b) states that the 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 good.

The Court of International Trade in Conair Corp. v. United States, Slip Op. 2005-95 (CIT August 12, 2005), classified table top fountains pursuant to the electric pump, in subheading 8413.70.2004, HTSUSA. The fountains in Conair consisted of a pump and a decorative sculpture made of plastic simulated rocks and natural stones. The court in Conair found that people purchased the fountains because of the visual and auditory appeal of the flowing water, not because of the article as a piece of art or sculpture. Therefore, the court found that the electric pump not the plastic stones established the essential character for the table top fountains. CBP subsequently has followed Conair in HQ 967937 (December 28, 2005) (involving stone and plastic table top fountains) and HQ 967936 (January 11, 2006) (involving a 72 inch glass fountain).

However, in HQ W968092 (April 20, 2006), CBP found that a type of fountain was classified as the stone components and not the pump. In HQ W968092, the article was considered “Penjing art”. Only real stone was used, no plastics, resins, or agglomerates. Artisans were used to carefully carve the stone to shape. The cost of the articles was up to $10,000 with the price of the pump only approximately $4. The weight of the stone was up to 2100 pounds. CBP acknowledged the decision in Conair, but determined that the Penjing art fountains were not similar to the inexpensive fake stone of the Conair fountains.

The shape of the instant fountains are created by molding the polyresin, not by artisans carving stonework. The cost and weight of the pump compared to the cost and weight of the other components is greater than the fountains of HQ 967936 and HQ 967937, but considerably less than the $10,000/$4 difference for some of the Penjing art fountains of HQ W968092. Therefore, these fountains fall between the fountains of the Conair case and HQ W968092.

The instant fountains are made of a limestone powder agglomerated with polyresin and reinforced with fiberglass. This fits in the description of heading 6810. The EN for heading 6810 also specifically includes “garden ornaments”. These two fountains are described as being for outdoor use. The two tier fountain stands over five feet tall and is round. The two tier fountain is a common size and design used for outdoor garden fountains and bird baths. See, e.g., Garden-fountains.com. Even without the electric pump, the two tier fountain could act as a garden ornament/bird bath. Therefore, we find that the essential character of the two tier fountain, model F50105BB, is determined by the artificial stone of heading 6810, HTSUSA.

The slate wall fountain is smaller in size, only 29.9 inches. Although you state it is designed for outdoor use, the slate wall fountain could be placed indoors on the floor or table. The artificial stone is molded, not expertly carved. Without the electric pump powering the water, the slate wall fountain would not likely be used as a decoration. Therefore, we find that essential character of the slate wall fountain, model F414062CA is provided by the pump.

Therefore, the fountains, models F414062CA and F50105BB, are classified pursuant to GRI 3(b). The essential character of the slate wall fountain, model F414062CA is imparted by the electronic pump, in heading 8413, HTSUSA, specifically subheading 8413.70.2004, HTSUSA, as “[p]umps for liquids, whether or not fitted with a measuring device; liquid elevators; parts thereof: [o]ther centrifugal pumps: [o]ther: [s]ubmersible pumps.” The essential character of the two tier fountain, model F50105BB, is imparted by the physical structure as a garden ornament, in heading 6810, HTSUSA, specifically subheading 6810.99.0000, HTSUSA, as “[a]rticles of cement, of concrete or of artificial stone, whether or not reinforced: [o]ther: [o]ther.”

HOLDING:

Pursuant to GRI 3(b), the slate fountain, model F414062CA, is classified in heading 8413, HTSUSA, specifically subheading 8413.70.2004, HTSUSA, as “[p]umps for liquids, whether or not fitted with a measuring device; liquid elevators; parts thereof: [o]ther centrifugal pumps: [o]ther: [s]ubmersible pumps.” The 2007 column one, general rate of duty is free.

Pursuant to GRI 3(b), the two tier fountain, model F50105BB, is classified in heading 6810, HTSUSA, specifically subheading 6810.99.0000, HTSUSA, as “[a]rticles of cement, of concrete or of artificial stone, whether or not reinforced: [o]ther: [o]ther.” The 2007 column one, general rate of duty is free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.

Sincerely,


Gail A. Hamill, Chief
Tariff Classification and Marking Branch