CLA-2 RR:CTF:TCM 968092 BAS
George Michael Andrews
President
Ship to Shore Trading
6212 S. New England
Chicago, Illinois 60638
RE: Classification of Penjing Decorative Stone Articles from China
Dear Mr. Andrews:
This is in reply to your electronic requests submitted on December 27, 2005, on behalf of Ship to Shore Trading seeking a binding ruling concerning the classification of seven items of Penjing art, under the Harmonized Tariff Schedule of the United States (HTSUS).
Your letter was forwarded to this office for our response. Our office did not receive samples of the merchandise.
FACTS:
The merchandise at issue is a type of art form called Penjing. You state that Penjing is the Chinese art of creating a miniature landscape in a container. A typical piece of Penjing has a portable landscape, an artistic value and an indoor garden. Each piece is unique, having been cut, sawed and chiseled and then placed in a hand selected tray designed to be individual. The Penjing pieces are made from natural stone. Some variations come in a marble, limestone or other natural stone tray that holds approximately one inch of water. All the pieces are composed of pure natural stone; no agglomerated processes or plastics are used. The stones are glued to the base tray for stability. In the United States the stone displays are combined with plants which are part of the displays. The plants, however, are not imported. The stones utilized are mined from caves, river beds and mountains in China.
Each piece comes with a small water pump to give the art form an added water feature. The value of the pump is about $4.00. The water is pumped through the rock or stone and flows down the side of it creating a mini waterfall effect. The pump also creates a mist. The displays may be imported with or without the pumps. The instant ruling request addresses classification of the stone displays with pumps. New York ruling letters L89834, January 17, 2006, and L89835, January 20, 2006, address the classification of these articles without the pumps.
The Penjing displays are composed of several different stone combinations, sizes and weights; no two are identical. The approximate range of value for the various stone displays is as follows:
Value Size Weight
$10,000 6’6” x 3’ x 4’6” 2100 pounds
$ 5,000 5’4” x 2’6” x 3’6” 1100 pounds
$ 2,500 4’ x 2’ x 2’6” 450 pounds
$ 1,000 3’3” x 1’6” x 2’ 275 pounds
$ 400 2’6” x 1’5” x 1’6” 175 pounds
$ 250 2’2” x 1’4” x 1’4” 85 pounds
$ 150 1’8” x 1’2” x 1’2” 55 pounds
You state that the types of stone that are used in this form of Penjing art are:
Decorative Stone Geological name Composition
Yanhanstone Mudstone 35% clay
35% very fine quartz
15% feldspar, calcite
Dragonbone Tuff 35% quartz
35% plagioclase
20% muscovite
10% limonite
Chickenbone stone Quartz no other properties
Chinese Sandstone Sinter 90% calcite
10% limonite
Sword Stone Siltstone 35% quartz
35% feldspar
Swordstone Schist Schist no other properties
Swordstone Gneiss Gneiss no other properties
The types of stone used for the base trays are as follows:
Base Tray Geological name Composition
Marble Marble Calcite
Yanshanstone Mudstone 35% Clay minerals
35% Very fine quartz
15% Feldspar
calcite
Thousandlayerstone Limestone 90% calcite
Turtleshellstone Limestone 90% Calcite
Branstone Conglomerate 45% Shale
25% Quartz
15% Feldspar
Most of the pieces will come with a metal/wood stand that will be sold as a complete unit at the retail level, however, they will NOT come packaged in the same box as the art work due to potential damage of the stone that may occur. You state that the metal/wood stands are specifically designed for the stone displays and serve no other purpose. The stands are a combination of milled steel for the framing and wood used for the legs. The type of wood used for the legs is pine which is then wrapped in “Leatheroid” outer skin.
ISSUE:
Is the subject merchandise classifiable under heading 9403, HTSUSA, as other furniture and parts thereof, heading 6802, HTSUSA, as a natural stone article, or under heading 8413, HTSUSA, as a pump?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
As the Penjing stone art displays are composed of approximately 97.6% stone, by weight and as the stand accounts for two percent of the item’s weight, it is described in part by Heading 6802, which provides for, inter alia, articles of stone and in part by Heading 9403, HTSUSA, as other furniture and parts thereof. As the water pump is also a feature of the Penjing decorative articles, it is also prima facie provided for in Heading 8413, HTSUSA, as “pumps for liquids.”
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. GRI 3 (a) provides, in pertinent part, that when two or more headings refer to part
only of the materials or substances in a composite good the headings are to be considered equally specific in relation to those goods. This is the case here, therefore GRI 3(b) is applicable.
GRI 3(b), provides that mixtures and composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component 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 goods.
The classification of tabletop fountains was recently addressed in Conair Corporation v. United States, Slip. Op. 05-95, Court No. 02-00383, Court of International Trade (CIT), (decided August 12, 2005). At issue in Conair were Serenity Ponds which consisted of a pump and a decorative sculpture made of plastic simulated rocks and natural stones. In Conair, the CIT upheld CBP’s analysis insofar as it applied GRI 3 (b) to make the classification determination but came to a different conclusion in applying the essential character analysis. In Conair the CIT stated that in order to determine the essential character of composite merchandise under the TSUS, the Court has sought to determine which component is indispensable to the merchandise. Id. at 15; citing Oak Laminates Div. Of Oak Materials Group v. United States, 8 CIT 175, 180, 628 F. Supp. 1577, 1581 (1984). The “essential character is that which is indispensable to the structure, core, or condition of the article, i.e, what it is.” Id. The inquiry is factual in nature and therefore will depend significantly on the circumstances of each individual case.
At issue in Conair was the classification of several tabletop fountains (“Serenity Ponds”). The Serenity Pond is designed to create a tranquil atmosphere at home or in the office, is intended to appeal to the consumer’s visual and auditory senses and is comprised of “1) a water reservoir or base; (2) an electric, submersible, centrifugal pump that sits in the base; (3) plastic tubing; (4) a power cord; and (5) various objects, such as simulated rocks, simulated bamboo, natural polished stones, through which and/or over which pumped water flows.” The Conair Court held that a decorative plastics article incorporating a pump that generates a fountain effect should be classified in subheading 8413.70.20, HTSUS, not as a decorative plastic article. The case held that the essential character of the product was imparted by the pump component not by the material comprising the body of the article.
In HQ 967937, dated December 28, 2005, and HQ 967936, dated January 11, 2006, this office followed the court’s rationale in Conair finding that a polyresin water fountain and a decorative glass water fountain with pump, respectively, should be classified in heading 8413, HTSUSA, as pumps. As in Conair, the essential character of both the polyresin fountain and the glass etched fountain was imparted by the pump.
The subject merchandise is significantly distinguishable from the fountains at issue in Conair and in HQ 967937, and HQ 967936. While the decorative article addressed in the Conair court case was a relatively inexpensive item, with the pump being the most valuable single component, the decorative items at issue in the instant case have very high values and the pump is a negligible component of each of these articles. In HQ 967937, the pump was 35% of the fountain’s value for item number C26N0222 and almost 40% of the fountain’s value for item number C26N0266. In HQ 967936, the pump was 9% of the item’s value. In the instant case the Penjing decorative stone displays can be $150, $250, $400, $1000, $2500, $5000 or $10,000. The value of the pump is only $4.00. As the water pump accounts for approximately 2% of the value of the least expensive piece and 1% of its weight, it is extremely insignificant in terms of the both the value and the weight of the item.
The stand, which accounts for approximately 4.3% of the item’s weight, is also relatively insignificant in terms of the essential character of the Penjing Art. The stand functions to display or support the artwork and is not what draws the consumer to purchase the item.
When a consumer purchases a “Penjing” decorative article consisting of a stone display, he is buying the article for its masterful artwork. The purchaser is looking for the pure stones used and the fact that each piece is unique. As each piece is masterfully cut, sawed and chiseled, that is what drives the value of the piece of art and the consumers’ selection, not the pump which is merely an accessory. While the fountains at issue in Conair and in HQ967937 and HQ 967936 are relatively inexpensive items purchased for use in the home or office, the Penjing Art is much more expensive and is also displayed in museums, galleries, restaurants, atriums and hotel lobbies. According to the company’s website, www.naturalmountainscapes.com, the masterpiece base trays are “painstakingly carved by hand” and “can take five men two weeks just to carve the base.” Based on the workmanship involved in the production of the stone display and the fact that the stone mountains are the obvious focus of the consumer’s attention, these mountains clearly impart the essential character to this merchandise.
The Court in Conair, further, reasoned, that the Explanatory Note to GRI 3 (b) favored the court’s conclusion. Conair at 19. “The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by. . . the role of a constituent material in relation to the use of the goods.” Explanatory Note, Rule 3 (b) (VIII) (emphasis added). The Conair Court reasoned that the pump’s role in relation to the use of the Serenity Ponds is essential. Conair at 19. In the instant case the pump is not essential to the use of the goods. It is the intricate stone carving in the instant case that imparts its essential character. In accordance with GRI 3(b), the Penjing decorative articles are properly classified as if they consisted of that component.
HOLDING:
By application of GRI 3(b), the Yanshanstone, Dragonbone Stone, Sword Stone Siltstone, Chickenbone Stone, Swordstone Schist and Swordstone Gneiss displays on base trays incorporating pumps with metal/wood stands should be classified in heading 6802, HTSUSA, specifically in subheading 6802.99.0060, HTSUS, which provides for: “Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules, chippings and powder, of natural stone (including slate): Other: Other stone, Other.” The general column one rate of duty is 6.5% ad valorem. The Chinese Sandstone Display on a base tray (incorporating a pump) with a metal/wood stand should be classified in subheading 6802.92.0000, HTSUS, which provides for: “Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate)), whether or not on a backing: artificially colored granules, chippings and powder, of natural stone (including slate): Other calcareous stone.” The general column one rate of duty is 4.9%.
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 World Wide Web at www.usitc.gov.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch