CLA-2 CO:R:C:M 955020 KCC
District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, Room 2017
San Pedro, California 90731
RE: Internal Advice No. 63/93; picture frames; calcium carbonate; plastic; 3924.90.20; laboratory report; NY 874122; GRI 1; GRI 3(b); essential character; EN 68.10;
HRL 956788
Dear District Director:
This is in response to your memorandum of July 20, 1993, requesting internal advice regarding the tariff classification of picture frames under the Harmonized Tariff Schedule of the United States (HTSUS). Information presented by counsel for the IA applicant at a meeting on May 18, 1994, and in an additional submission dated September 9 and 27, 1994, were considered in rendering this decision. Two samples of picture frames, one marked "100% Plastic", and four additional painted samples were submitted for our examination.
FACTS:
The article under consideration is the unmarked picture frame. The Internal Advice ("IA") applicant, Figi Graphics Inc., states that its picture frames are manufactured from a mixture of resin and powdered calcium carbonate. The picture frames are manufactured by pouring the resin mixture into a silicon mold. The mold is then placed in a pressure chamber or vacuum machine for one to two minutes to eliminate air bubbles in the resin mixture or on the inside surface of the mold. After the air bubbles are completely removed, the mold is removed and placed on a flat surface to cool for approximately fifteen minutes.
The cooled resin, now called a white casting piece, is removed from the mold for further cooling and hardening. Thereafter, it is sanded, placed into a water/sodium bicarbonate solution for 30 minutes to remove any oily residue, and then bathed in clean water to remove the sodium bicarbonate solution. After the white casting piece dries, it is hand painted with designs, dried and packed for shipment.
The IA applicant contends that the picture frame is classified under subheading 3924.90.20, HTSUS, as plastic picture frames. Their classification is based on an independent laboratory analysis which analyzed the weight breakdown of the materials and the role of calcium carbonate in the picture frame, i.e., filler for plastics or binder for agglomerated stone. The laboratory performed an "ash test" in accordance with ASTM D-1208 and a "sieve test" in accordance with ASTM D-185. The independent laboratory analysis concluded that the size of the calcium carbonate particles (up to 150 microns) is consistent with plastic fillers, that the calcium carbonate filler did not change the outward appearance or properties of the plastic material or the resulting product, and that the picture frame did not look like artificial stone. Additionally, the IA applicant submitted trade information which, in general, concludes that the picture frame consists of plastic resin and stone filler, the industry standard for artificial stone requires that the stone represent the vast preponderance of the weight of the product, and that the product must have the characteristics of stone.
You believe that the picture frame is classified under subheading 6810.99.00, HTSUS, as other articles of artificial stone. Your opinion is based on New York Ruling (NY) 874122 dated May 20, 1992, which classified a sculpture and bookends made of artificial resin under subheading 6810.99.00, HTSUS, after Customs laboratory confirmed that the articles were made of calcium carbonate and plastic material. Additionally, the unmarked sample was analyzed for composition by weight, identification of resin and calcium carbonate, and mesh size of calcium carbonate in Customs Laboratory Report #3-94-30224-003 dated December 6, 1993. The laboratory report concluded that the picture frame was composed, by weight, of 75% polyester resin and 25% calcium carbonate. The calcium carbonate that passed through a 200 mesh sieve was 98.98%. Additionally, the laboratory analysis stated that ASTM methods, D-1208 and D-185, are for pigment, not for finished products.
The competing subheadings are:
3924.90.20 Tableware, kitchenware, other household articles and toilet articles, of plastics...Other...Picture frames.
6810.99.00 Articles of cement, of concrete or of artificial stone, whether or not reinforced...Other articles...Other.
ISSUE:
Is the picture frame classified under subheading 3924.90.20, HTSUS, as plastic picture frames or under subheading 6810.99.00, HTSUS, as other articles of artificial stone?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."
In cases such as this, where a party submits an outside report that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820-002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently classify products, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.
As evidenced by the Customs Laboratory report, the picture frames are composed of polyester resin and calcium carbonate. Since the picture frame is composed of 75% polyester resin, the IA applicant contends that its essential character is imparted by the plastic material and, therefore, it is classified under subheading 3924.90.20, HTSUS, as plastic picture frames pursuant to GRI 3(b), HTSUS, which states:
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.
In this case, classification pursuant to GRI 3(b), HTSUS, is inappropriate. Classification pursuant to GRI 3(b) applies only when goods are prima facie classifiable under two or more headings. See, GRI 2(b), HTSUS. Although the picture frame is composed of polyester resin and calcium carbonate, we are of the opinion that it is not prima facie classifiable under two or more headings.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System ENs may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 68.10 (pg. 905) states 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, ...vases, flower pots, architectural or garden ornaments; statues, statuettes, animal figures; ornamental goods...
The articles of this heading may be bused, ground, polished, varnished, bronzed, enamelled, made to imitate slate, moulded or otherwise ornamented....
EN 68.10 indicates that stone agglomerated with plastics is to be classified as artificial stone in heading 6810, HTSUS, not as plastics in chapter 39, HTSUS. We are of the opinion that a crucial factor which makes a product an article of agglomerated stone is the uniform blending of the stone, i.e., calcium carbonate, and the binding material, i.e., polyester resin; not the percentages of each component. We note that stone can be used as a "filler" in some cases, when it is used in de minimis amounts. However, in this case we do not believe that 25% is a de minimis amount. We have reviewed and considered the trade information submitted by the IA applicant, but believe that classification should proceed pursuant to EN 68.10 which provides commentary of the scope of heading 6810, HTSUS.
Additionally, the IA applicant contends that artificial stone contains more stone by weight than plastics. Our information indicates that this statement is untrue. Powdered stone or pieces of stone usually weigh less than plastics. Contrary to the IA applicants contention, articles of stone agglomerated with plastics usually contain a greater amount of plastics by weight. Whether the stone or plastics weighs more is irrelevant, as long as the two ingredients are agglomerated, i.e., bound or uniformly blended through the body of the article.
The uniform blending of the calcium carbonate and polyester resin forms a unique product which is neither plastic or stone, but agglomerated stone. The IA applicant contends calcium carbonate does not change the outward appearance or properties of the plastic and that the picture frame does not look like artificial stone. We do not agree. A visual comparison of the "100% Plastic" and unmarked picture frames, which are both unpainted, immediately shows a difference in color. The unmarked frame has a grey white color, whereas the "100% Plastic" picture frame has a yellow white color. However, the greatest difference in the two samples is the sound each makes when dropped onto a hard surface. The unmarked picture frame when dropped sounds more like stone. The combination of stone and plastic makes this product different than either pure plastic or pure stone.
The IA applicant contends that only terrazzo, granito and heavier types of agglomerated stone is regarded as artificial stone classifiable under heading 6810, HTSUS. EN 68.10 states that "[a]rticles of artificial stone include those of "terrazzo", "granito", etc...." This statement is not restrictive to only those types of artificial stone. Other types of artificial stone are classifiable under heading 6810, HTSUS, as long as they are an imitation of natural stone obtained by agglomerating pieces of natural stone or crushed or powdered natural stone with lime or cement or other binders Moreover, EN 68.10 states that this heading includes statues, statuettes, animal figures and ornamental goods. Since the picture frame is an ornamental good composed of calcium carbonate agglomerated with polyester resin, we are of the opinion that it is classified as an article of artificial stone under subheading 6810.99.00, HTSUS, pursuant to GRI 1, HTSUS. See, Headquarters Ruling Letter (HRL) 956788 dated November 1, 1994, which classified picture frames consisting of poly resin, stone powder and plastic under subheading 6810.99.00, HTSUS, as other articles of artificial stone.
HOLDING:
Pursuant to GRI 1, HTSUS, the picture frame is classified under subheading 6810.99.00, HTSUS, as other articles of artificial stone.
A copy of this decision should be provided to the IA applicant as soon as possible. The Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels 60 days from the date of this decision.
Sincerely,
John Durant, Director
Commercial Rulings Division