CLA-2 RR:CTF:TCM 967937 BAS
Joseph R. Haffacker
Barthco Trade Consultants
The Navy Yard
5101 S. Broad Street
Philadelphia, PA 19112
RE: Classification of a Polyresin Water Fountain with Pump
Dear Mr. Haffacker:
This is in reply to your request submitted on September 15, 2005, on behalf of Big Lots Stores, Inc. seeking a binding ruling concerning the classification of two decorative polyresin water fountains with pumps, Item Number C26N0222 and Item Number C26N0206, 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 a sample of the merchandise.
FACTS:
You state that both fountains consist of stone uniformly agglomerated with plastics throughout the body of the article and that both fountains are made in China. The first fountain, Item Number C26N0222, is available in three different designs. It is approximately 8.75 inches in height, 4.38 inches in depth and width and has either a red, green or blue LED light on the base. The material cost breakdown of the product is: sixty percent polyresin, thirty-five percent water pump and five percent LED light.
Item Number C26N0206, is available in two different designs. It is approximately 6.75 inches in height and five inches in width and depth.
The cost breakdown of the materials is as follows: fifty percent polyresin, forty percent water pump and ten percent LED lights.
ISSUE:
Is the subject merchandise classifiable under heading 6810, HTSUSA, as an article of artificial stone, or 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 item number C26N0222 is composed of 60% polyresin and item number C26N02026 is composed of 50% polyresin, it is described in part by Heading 6810, which provides for, inter alia, articles of artificial stone (stone agglomerated with plastics). As the water pump accounts for 35% of the material cost of Item C26N022 and 40% of the material cost of Item C26N02026, the decorative fountains are 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 substantially similar merchandise 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). 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.
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.”
Although the subject merchandise is composed mostly of polyresin as opposed to plastic, as in Conair, the construction and function of the table top fountains at issue is substantially similar to the Serenity Ponds at issue in Conair. That is, both the subject merchandise and the merchandise in Conair are decorative articles that generate a fountain effect. Like the fountain in Conair, both items at issue are designed to create a tranquil atmosphere at home or in the office are intended to appeal to the consumer’s visual and auditory senses and are 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 stone through which and/or over which pumped water flows. Accordingly, the analysis used by the Court in Conair is applicable to the subject merchandise.
In Conair, the Court found that the essential character of the Serenity Pond is imparted by the pump. The parties in Conair agreed that the Serenity Pond is “designed to create a ‘tranquil atmosphere at home or in the office’” and that it is “intended to appeal to the visual and auditory senses“ of the consumer. The Court reasoned that to the extent that the Serenity Pond succeeds in creating this tranquil atmosphere, it is necessary that the water flow over the simulated landscape that stimulates the visual and auditory senses. Any appeal to the auditory senses is present only when the pump is transporting water to the top of the Serenity Pond, thus allowing it to flow over the simulated rocks. The Court stated that it is only when the pump is running and the water is flowing that the Serenity Ponds could be said to have any “visual or auditory” appeal or create anything approaching a “tranquil atmosphere.” The water flowing over the rocks gives the fountain a more attractive look and also produces the sound of flowing water. Conair at 17. Although the pump many not be visible, it is nonetheless indispensable to making the merchandise “what it is.” Id. citing Oak Laminates, 8 CIT at 180. 628 F. Supp. At 1581.
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 court reasoned that the pump’s role in relation to the use of the Serenity Ponds is essential. Conair at 19. While the plastic component contributes to the manner in which the water flows, and thus to the Serenity Pond’s auditory and visual appeal, without the pump the water does not flow at all. Id. at 20. Therefore, it is the pump that is essential to the use of the goods. Thus, as it is the pump that imparts each Serenity Pond its essential character, in accordance with GRI 3 (b) the Serenity Pond is properly classified as if it consisted of that component.
Applying the rationale in Conair to the subject merchandise, we find that the essential character of the Polyresin Water Fountains with Pumps, Item Numbers C26N0222 and C26N0206 is imparted by the pump. Like the merchandise at issue in Conair, which is designed to create a ‘tranquil atmosphere at home or in the office,’” the retail packaging of the polyresin water fountains at issue states that they are designed to create a “relaxing rainfall environment.” The polyresin fountains, like the Serenity Ponds, are intended to appeal to the “visual and auditory senses“ of the consumer. The water flowing over the polyresin is essential in order to create the tranquil atmosphere. Following the Conair Court’s rationale, any appeal to the auditory senses is present only when the pump is transporting water to the top of the Serenity Pond, thus allowing it to flow over the simulated stone surface. The Court stated that it is only when the pump is running and the water is flowing that the Serenity Ponds could be said to have any “visual or auditory” appeal or create anything approaching a “tranquil atmosphere.” The water flowing over the agglomerated stone gives the fountain a more attractive look and also produces the sound of flowing water. As in Conair, although the pump may not be visible, it is nonetheless indispensable to making the merchandise “what it is.” Therefore we find that the subject water fountains are classified under heading 8413, HTSUSA, by application of GRI 3(b).
HOLDING:
By application of GRI 3(b), the Polyresin Water Fountains with Pumps, item numbers, C26N0222 and C26N0206 are classified under heading 8413, HTSUSA, specifically in subheading 8413.70.2090, HTSUSA which provides for “Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; part thereof: Other centrifugal pumps: 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 World Wide Web at www.usitc.gov.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch