OT:RR:CTF:CPMM H251211 KSG
Rachel Rowells
Transportation Compliance Specialist
BJ’s Wholesale Club, Inc.
25 Research Drive
Westborough MA 01581-5230
RE: Tariff classification of a stone grandfather clock with a water feature
Dear Ms. Rowells:
This ruling is in reference to your amended request for a binding ruling dated December 30, 2013, regarding the classification of a stone grandfather clock with a water feature under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay in responding.
FACTS:
The stone grandfather clock is 72 inches in height x 20 inches in width and 14 inches in depth. It weighs 139 lbs. The article is intended for outdoor use; it is identified as a “Clock Fountain” (in large bold letters) and in smaller letters as “lighted slate garden statuary” on the label attached to it. Although it was described as slate on the label and instructions attached to it, according to your responses to questions CBP posed, it is made of schist.
The major components include the schist tower, the clock (a large dial, a large pendulum, a brass rod and a clock movement), an electronic pump (made of plastic) placed at the base of the article that causes the water to move, and LED lights. The schist is the primary component based upon size, cost, and weight. The clock is the second in terms of cost, weight and prominence. The cost breakdown of the major components is: schist 37%, clock (dial, movement, pendulum) 23%, pump 14%, and LED 11%. The weight breakdown of the major components is: schist 85%, clock 3.23%, pump 1.34%, and LED 0.78%. The clock movement and pendulum operate off a battery. A photograph of the article is included in the submission. The assembly instructions with the article states that the pump and water should be removed during freezing conditions. This article was made in China.
ISSUE:
Whether the stone grandfather clock with a water feature is properly classified in heading 6802, HTSUS, as a stone article, in heading 8413, HTSUS, as a pump for liquids, or in heading 9105, HTSUS, as a clock?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
GRI 3 states, in pertinent part:
When by application of [GRI] 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 . . . , 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 . . . 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.
The HTSUS headings under consideration are the following:
6802 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):
8413 Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; part thereof:
9105 Other clocks:
Section note XVI, note 1(n), HTSUS, which includes chapter 84, excludes clocks, watches or other articles of chapter 91. Section note XIII, note 1 (i), HTSUS, which includes chapter 68, also excludes articles of chapter 91 (for example clocks and clock cases). As the instant article is partially described in various headings (as an article of stone of heading 6802, a pump of heading 8413, and clock of heading 9105), it is not covered in its entirety by any one heading at GRI 1. Therefore, we need to proceed to GRI 3. GRI 3(a) does not apply because there is no heading that provides a specific description that clearly identifies the stone grandfather clock fountain.
GRI 3(b) provides that 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 the consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, constitute the official interpretation of the Harmonized System at the international level. While neither legally binding not dispositive, the ENs 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. 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 91 states, in pertinent part, the following:
This Chapter covers certain apparatus designed mainly for measuring time or for effecting some operation in relation to time. It includes timepieces suitable for carrying on the person (watches and stop-watches), other timepieces (ordinary clocks, clocks with watch movement, alarm clocks, marine chronometers, clocks for motor vehicles, etc.), and also time recording apparatus, time interval measuring instruments and time switches; in general, it also covers part of these articles.
The articles of this Chapter may be of any material (including precious metals) and they may be decorated or trimmed with natural or cultured pearls, or natural, synthetic or reconstructed precious or semi-precious stones (see the Explanatory Notes to headings 91.11 and 91.12.
The classification of clocks and watches combined with some other object (an article of furniture, a lamp, inkstand, paperweight, writing-pad, tobacco jar, cigarette or cigar lighter, handbag, powder compact, cigarette case, propelling-pencil, walking-stick, etc.) is governed by the Rules for the Interpretation of the Nomenclature. The mere inclusion of internal lighting does not remove clocks or watches from this Chapter.
EN VIII to GRI 3(b) states that “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.” Essential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is. The Home Depot U.S.A., Inc. v. United States, 427 F. Supp. 2d 1278, (Ct. Int’l Trade 2006) aff’d 491 F.3d 1334 (Fed. Cir. 2007).
In Conair Corporation v. United States, 29 C.I.T. 888 (Ct. Int'l Trade 2005), the court classified a tabletop fountain made of plastic in heading 8413, HTSUS, under GRI 3(b). The essential character of the tabletop fountain was determined to be the pump which creates flowing water “that stimulates the visual and auditory senses.” The court stated that “the pump’s role in relation to the use of the Serenity Ponds is essential.” The plastic in the tabletop fountain was of far less value and weight than the pump.
The Court examined imported electronic devices that measure weather conditions and forecast weather as well as display the time and date in La Crosse Tech., Ltd. v. United States, 723 F.3d 1353 (Fed. Cir. 2013). In that case, the court applied GRI 3(b) and determined that the essential character of the imported articles was the ability to forecast weather. The court stated that the clock function was more than incidental but weighed the competing functions and found the clock to be less significant to the function of the article than the functions that measure atmospheric and weather conditions. Further, the weather-related features added significant cost to the products.
The article in this case differs from the tabletop fountain in Conair because the schist and the clock are of far greater weight, size and value than the pump. Further, flowing water is not of primary importance to the purpose of the article as it was to the Serenity Pond that was the subject of Conair. The purpose of the article in Conair was to create a feeling of peacefulness, which was primarily caused by the flow of water. The article in this case is a grandfather clock. The article functions as a clock year-round and only has a water feature in the warm weather. Under the analysis in LaCrosse, the fountain feature may be more than incidental but less significant to the function of the article as a whole. Hence, the pump does not impart the item with its essential character.
Furthermore, because stone is heavy material, we have placed little reliance on the comparative weights of the components in this case. As discussed in the EN to Chapter 91, the material of the clock does not change the tariff classification. In adherence to Home Depot, we looked to the articles use, name and description which focuses on the clock feature, with the clock description being named first (“Clock Fountain”). While this article is decorative, its utilitarian purpose is to keep time. The clock dial and the pendulum on a large brass rod are prominent and contribute significantly to the visual appeal of this article. In fact, in HQ 953474, dated June 11, 1993, CBP classified an article described as a “fountain clock” in heading 9105, HTSUS. We find that the attribute that make this article “what it is” is the prominent decorative clock dial, the pendulum on a large brass rod and the clock movement. Its value in relation to the other components is significant, and the shape of this article, the clock face, pendulum, and clock movement create a stone grandfather clock. The article is an “apparatus designed mainly for measuring time” as described in the EN for Chapter 91, HTSUS.
As such, Headquarters Ruling Letter (HQ) W968092, dated April 20, 2006 and HQ W968441, dated February 8, 2007 are distinguishable. In the former, CBP classified an artistic miniature landscape with a water feature in heading 6802, HTSUS, as a work of stone due to the artistry involved in placing the stone. In the latter, CBP classified a large stone fountain in heading 6802, HTSUS. Neither of these articles were clocks, nor was the stone simply the housing for a grandfather clock.
We conclude that the clock (face, movement, brass rod and pendulum) imparts the essential character of this article. Accordingly, we conclude that the article is classified in heading 9105, HTSUS.
By application of GRI 6, because the clock is battery operated, the article is classified in subheading 9105.91.80, HTSUS, which provides for “Other clocks: Other: Electrically operated: Other.” See New York Ruling Letter F82328, dated February 14, 2000, which classified a battery-operated clock in subheading 9105.91.80, HTSUS.
HOLDING:
By application of GRIs 3(b) and 6, the stone grandfather clock is classified in heading 9105 and specifically subheading 9105.91.80, HTSUS, which provides for “Other clocks: Other: Electrically operated: Other.” The column one, general rate of duty is 30 cents each plus 6.9% on the case and 5.3% on the battery.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division