Request for internal advice; Classification of ornamental pipe relic aquarium decoration

HQ H279842 October 3, 2017 CLA-2 OT:RR:CTF:CPM H279842 NCD CATEGORY: Classification TARIFF NO.: 6810.99.0080 Center Director Consumer Products & Mass Merchandising CEE U.S. Customs and Border Protection 1 East Bay Street Savannah, Georgia 31401 Attn: Marshall Dworkis, Import Specialist RE: Request for internal advice; Classification of ornamental pipe relic aquarium decoration Dear Center Director: This is in response to a request by the Center of Excellence and Expertise for Consumer Products & Mass Merchandising (“CPMM”) for internal advice as to the proper classification of an “ornamental pipe relic aquarium decoration” (“aquarium decoration” or “subject merchandise”) under the Harmonized Tariff Schedule of the United States (HTSUS). CPMM submitted its request following receipt of a December 29, 2015 request by Petco that CPMM seek internal advice from our office pursuant to 19 C.F.R. §177.11(a) (“internal advice request”). Our determination as to the classification of the subject merchandise is set forth below. FACTS: The subject merchandise, designated “ornamental pipe relic aquarium decoration” in Petco’s internal advice request, is a statuette consisting of two overlaying hollow tubes mounted on separate, cross-positioned bases. The article is of a form and color scheme replicative of rusted copper pipe segments resting upon mossy rocks, and is designed for use as a stationary decoration in home aquariums. According to Petco’s internal advice request, production of the aquarium decoration entails filling a resin mold with calcite water, shaking the mold “evenly” to form the article’s shape, drying the article, removing it from its mold, and polishing and painting the article. The resultant product is described as an article comprised 50% of polyresin and 50% of calcium carbonate derived from crushed stone in which “the mixture runs throughout the body of the article.” This description is consistent with a third-party product specification sheet included with Petco’s internal advice request. A sample of the aquarium decoration was forwarded to our office by CPMM and subsequently submitted to a CBP laboratory for analysis of the article’s composition. We specifically requested the laboratory’s technical opinion as to whether the sample was made up of calcium carbonate uniformly interspersed among polyresin, as well as to the relative percentages by weights of each constituent material. In response, the laboratory reported that the sample was comprised approximately 61 percent of “inorganic material uniformly agglomerated with a polymer resin” and that the inorganic material was “principally” calcium carbonate.* Petco entered the subject merchandise in heading 6810, HTSUS, specifically subheading 6810.99.00, which provides for: “Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other.” Petco contends in its internal advice request that the article’s classification as entered is correct. CPMM has inquired as to whether the article is instead classified in heading 3926, HTSUS, specifically subheading 3926.40.90, HTSUS, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other.” ISSUE: Whether the subject ornamental pipe relic aquarium decoration is classified in heading 3926, HTSUS, as “other articles of plastic” or in heading 6810, HTSUS, as “articles of artificial stone.” LAW AND ANALYSIS: Merchandise imported into the United States is classified under the HTSUSA. 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 (AUSRIs). 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. 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 HTSUS provisions under consideration in this case are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.40.00 Statuettes and other ornamental articles 6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: 6810.99.00 Other Because heading 3926, HTSUS, applies to articles of plastics only where those articles are “not specified elsewhere”, we initially consider whether the subject aquarium decoration is classifiable in heading 6810, HTSUS. See EN 39.26 (“This heading covers articles, not elsewhere specified or included, of plastics.”); see also LeMans Corp. v. United States, 660 F.3d 1311, 1319 (Fed. Cir. 2011) (indicating that a pertinent EN is to be “credited…absent persuasive reasons to disregard it.”). If so, it cannot be classified in heading 3926. Heading 6810 provides, inter alia, for articles of artificial stone. EN 68.10 provides as follows with respect to the scope of the heading: This heading covers moulded, pressed or centrifuged articles (e.g., certain pipes) of cement (including slag cement), of concrete or of artificial stone, other than those of heading 68.06 or 68.08 (in which cement is merely a binder), or heading 68.11 (articles of asbestos-cement). * * * 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... architectural or garden ornaments; statues, statuettes, animal figures; ornamental goods. Per EN 68.10, “articles of artificial stone” of heading 6810 include, inter alia, articles which are produced by molding, composed of natural stone agglomerated with plastic binding material, and presented in form of “ornamental” products. See LeMans, 660 F.3d at 1319. CBP has accordingly classified decorative articles in the heading upon determining that they are comprised of naturally-occurring calcium carbonate agglomerated with resins. See Headquarters Ruling Letter (“HQ”) 962951, dated May 22, 2000 (classifying “resin figurines” comprised 55 percent of calcium carbonate and 45 percent of plastics in heading 6810); see also HQ 965125, dated March 5, 2002 (determining that snowman figurine comprised 57 percent of calcium carbonate and 43 percent of plastic resin to be an “article of artificial stone” within the meaning of heading 6810). In so doing, we have ruled that the “crucial factor” in determining whether a natural stone is “agglomerated” with a non-mineral binder is the degree to which the former is uniformly interspersed among the latter. See HQ 955020, dated February 1, 1995. Uniform agglomeration throughout an article is sufficient to render the article within the scope of heading 6810, even in cases where natural stone represents as little as a quarter of the article’s total composition by weight. See id.; cf. HQ 087265, dated July 19, 1990 (“A stone tile that is obtained by agglomerating stone pieces with a binder implies that the entire stone is held together by a binding agent that runs throughout the stone. It is more than just a few large pieces that are attached to each other with glue.”). Here, the subject product satisfies the above-discussed conditions sufficient for classification as an “article of artificial stone.” It is clearly “ornamental” by virtue of its decorative design and intended use in aquariums, and by all accounts, it is composed of natural stone agglomerated with a plastic binder. As to the latter, Petco’s submission indicates that the decoration is obtained by a molding process that yields a product consisting 50 percent of polyresin and 50 percent of calcium carbonate derived from crushed, naturally-occurring stone. While this exact description was not confirmed by the CBP laboratory, it is not inconsistent with the laboratory’s determination that the article is made up of at least 61 percent inorganic material comprised predominantly, but not entirely, of calcium carbonate. Specifically, the lack of complete (or near-complete) purity in the calcium carbonate content indicates that the calcium carbonate is in fact naturally-occurring, rather than synthetically constructed. Moreover, per the laboratory’s calculations, this naturally-occurring stone material accounts for at least a quarter, and possibly well over half, of the ornament’s total composition by weight. Lastly, it is undisputed that the calcium carbonate is “uniformly agglomerated” with the polyresin. Therefore, in accordance with EN 68.10 and the above-cited CBP precedent, we conclude that the aquarium ornament is an “article of artificial stone” within the meaning of heading 6810, HTSUS. Because it is fully described by heading 6810, it is classified in that heading, rather than in heading 3926, HTSUS. HOLDING: In accordance with the above analysis, the subject ornamental pipe relic aquarium decoration is classified in heading 6810, HTSUS. It is specifically classified in subheading 6810.99.0080, HTSUSA (Annotated), which provides for: “Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other: Other.” The 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 HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. Sixty days from the date of this decision, the Office of International Trade, Regulations and Rulings, will make this decision available for CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of publication. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division