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HQ 964361




August 6, 2001

CLA-2 RR:CR:GC 964361 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00

Michael Tomenga
Neville Peterson LLP
1900 M Street, N.W.
Suite 850
Washington, DC 20036

RE: Reconsideration of New York Ruling Letter (“NY”) F83276; Calming pond; Serenity Pond

Dear Mr. Tomenga:

This is in response to your letter of July 10, 2000, on behalf of Conair Corporation, in which you request reconsideration of New York Ruling Letter (“NY”) F83276, dated March 15, 2000, issued by the Director, National Commodity Specialist Division, regarding the tariff classification of a calming pond. You made an additional submission dated July 25, 2001, following your oral conference of June 8, 2001.

FACTS:

In NY F83276, Customs held the model CP-1 calming pond to be classified in subheading 3926.40.00, Harmonized Tariff Schedule of the United States (“HTSUS”), as: “Other articles of plastics ... : ... Statuettes and other ornamental articles.”

You request that we also rule on the CP-2 serenity pond, which is almost identical to the CP-1 calming pond. The only difference between the CP-1 calming pond and the CP-2 serenity pond is that the CP-2 serenity pond has a small thatch of artificial grass which is positioned at the top of the article. You also state that the CP-1 calming pond has been renamed a serenity pond. For the purpose of this ruling we will treat both of these models as the same article and refer to that article as a calming pond or a serenity pond.

The calming pond was described as follows in NY F83276:

This item consists of a plastic foundation mountain, a plastic plant base plate containing polished stones made of natural rocks, a submersible pump and stones, natural-looking driftwood with a painted orchid and a 6-foot power cord.

In your submission you state that the calming pond is comprised of the following:

(1) a molded plastic, bowl-shaped base,

(2) an electric, submersible, centrifugal pump with power cord, which sits in the base,

(3) plastic tubing which connects the pump to a large piece of simulated rock, and

(4) two pieces of molded epoxy, one small and one large, colored to simulate rock.

In addition, the article is packaged with 25 small pieces of natural polished stones of varying colors and compositions ...

ISSUE:

What is the tariff classification of the subject calming pond?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

2517 Pebbles, gravel, broken or crushed stone, of a kind commonly used for concrete aggregates, for road metalling, or for railway or other ballast ... :

2517.10.00 Pebbles, gravel, broken or crushed stone, of a kind commonly used for concrete aggregates, for road metalling, or for railway or other ballast ...

3926 Other articles of plastics ...

3926.40.00 Statuettes and other ornamental articles

8413 Pumps for liquids, whether or not fitted with a measuring device ...

8413.70 Other centrifugal pumps:

8413.70.20 Other.

Note 2(p) to Chapter 39, HTSUS, provides that: “This chapter does not cover: ... Articles of section XVI (machines and mechanical or electrical appliances)[.]” Section XVI includes Chapters 84 and 85. Therefore, if an article is described in Chapter 84 or 85, HTSUS, it is not classified in Chapter 39, HTSUS.

EN 84.13 provides in pertinent part as follows:

This heading covers most machines and appliances for raising or otherwise continuously displacing volumes of liquids ... whether they are operated by hand or by any kind of power unit, integral or otherwise.

With respect to your claim that the calming pond should be classified as a pump, it is our view that the calming pond is not a pump, but is an article which includes a pump.

We are unable to resolve the classification of the calming pond at GRI 1 because it is a composite good classifiable under two or more headings, i.e. headings 2517, 3926, and 8413 GRI 2 is not applicable here except insofar as it provides that “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.”

GRI 3 provides as follows:

When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

EN (IX) to GRI 3(b) provides:

For purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. [Emphasis in original.]

EN (VIII) to GRI 3(b) provides:

The factor which determines the 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.

We are not able to classify the calming pond at GRI 3(a) because headings 2517, 3926 and 8413 are regarded as equally specific in relation to the good. Pursuant to GRI 3(b), we find that the essential character of the calming pond is imparted by the plastic. Essential character has frequently been construed to mean the attribute which strongly marks or serves to distinguish what an article is. After a careful consideration of this issue, we determine that the calming pond is essentially a plastic decorative article. Accordingly, based upon our determination that the essential character of the calming pond is as a article of plastic, we find that it is provided for in heading 3926, HTSUS, and is classified in subheading 3926.40.00, HTSUS, as: “Other articles of plastics ... : ... Statuettes and other ornamental articles.”

The calming pond serves a decorative function without the pump, e.g., when the pump is not on. We do not believe that the sound of the water is sufficient or serves sufficient enough of a purpose to change our view as to the classification of the calming pond.

We do not agree with your claim that “Section XVI Note 4 also confirms classification of the fountain as a pump in Heading 8413 by requiring a machine contributing to a clearly defined function covered by one of the headings in Chapter 84 to be classified in that heading.” As stated above, it is our position that the calming pond is essentially a plastic decorative article. Therefore, we do not believe that the calming pond contributes to a clearly defined function covered by heading 8413.

Similarly, we do not agree with your claim that Note 2(p) to Chapter 39, HTSUS, stated above, is applicable here. It is our view that note 2 to Chapter 39, HTSUS, is not applicable because the calming pond is not an article of Section XVI, HTSUS.

Our determination that the calming pond is classified in subheading 3926.40.00, HTSUS is consistent with the following rulings on similar articles where Customs has consistently classified articles of this type based upon the constituent material.

In HQ 958866 dated April 16, 1996, Customs found a copper tabletop water garden to be classified in subheading 8306.29.00, HTSUS, as: “... statuettes and other ornaments, of base metal ...” The article there was described as follows: “... a four leaf shaped copper fountain unit connected through copper ‘stems’ to a plastic water reservoir and pump powered by an electric cord and 3-pronged plug, a copper planter and a decorative rock package. The literature included with the sample describes the article as an ‘indoor fountain’.” In HQ 958866, we stated:

Customs is of the opinion that the tabletop garden is a base metal decorative article. It has no utility value but is wholly ornamental. Its only usefulness is to contain or support other decorative articles, specifically a fountain and silk flowers.

This finding is consistent with New York Ruling Letter (NYRL) 815143 dated October 16, 1995, in which Customs determined that an indoor wooden planter and fountain was classifiable under subheading 4421.90.98, HTSUS, as an other article of wood.

In HQ 956353 dated May 26, 1994, Customs found a “village animated skating pond” to be classified in subheading 3926.40.00, HTSUS, as: “Other articles of plastics ... : ... Statuettes and other ornamental articles.” The good therein consisted of a large plastic base which gave the appearance of a skating pond, a synchronous motor and cord located in the base, and six plastic figures. In classifying the good pursuant to GRI 3(b), we stated:

In our opinion the plastic skating pond, as compared to the motor and other plastic components, distinguishes the article. Although the motor allows the figures to move around the pond, it is the skating pond which essentially provides the article’s ornamental and decorative appeal in addition to constituting the greatest bulk and weight. A consumer is likely to purchase the article for the specific scene it depicts. Furthermore, it is apparent that even when the motor is turned off, the skating pond will continue to be displayed in one’s home for ornamental purposes. The motor primarily serves to embellish the overall ornamental effect of the Village Animated Skating Pond.

In NY E84043 dated July 27, 1999, Customs classified a decorative calming pool in subheading 3926.40.00, HTSUS, as: “Other articles of plastics ... : ... Statuettes and other ornamental articles.” The good therein consisted of a submersible pump, a resin plate containing slate rocks and stones, natural looking driftwood with a painted orchid, and a wrought iron stand.

In NY D85475 dated January 22, 1999, Customs classified an “angelic musical water fountain” in subheading 6810.99.00, HTSUS, as: “Articles of ... artificial stone ...” The good therein was a decorative, three-dimensional agglomerated stone water fountain figurine with a self-contained, battery-operated pump and sound chip.

In A89712 dated December 19, 1996, Customs classified a plastic house waterfall in subheading 3926.40.00, HTSUS, as: “Other articles of plastics ... : ... Statuettes and other ornamental articles.” The article consisted of a plastic house with trees, flowers, and waterfall (all of plastic), a rock wall setting, a plastic water reservoir, and an electric-powered pump.

In NY G84772 dated February 14, 2001, Customs classified a water fountain, described as “a decorative tabletop agglomerated stone article that operates with the use of a UL adjustable water pump,” in subheading 6810.99.00, HTSUS.

HOLDING:

The subject calming ponds (CP-1 and CP-2; also known as serenity ponds) are classified in subheading 3926.40.00, HTSUS, as: “Other articles of plastics ... : ... Statuettes and other ornamental articles.”

NY F83276 dated March 15, 2000 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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