CLA-2 CO:R:C:M 953474 MMC
Mr. Richard T. Soper
Fountains and Landscapes Ltd.
9 Gap View Road
Short Hills, N.J. 07079
RE: Le Batre Fountain Water Clock; EN 91.05
Dear Mr. Soper:
This in response to a letter of October 20, 1992, and
subsequent correspondence, submitted to the Area Director of
Customs in New York, by the Irish Trade Board on behalf of
Fountains and Landscapes Ltd., requesting classification of the
Le Batre Fountain Water Clock under the Harmonized Tariff
Schedule of the United States (HTSUS). The letters were
forwarded to this office for a reply.
FACTS:
The article is described by the submitted literature as a
water clock suitable for courtyards, shopping malls, hotel
foyers, estates and ornamental gardens. Two fountain sculptures
with water jets function as hands by either rotating on a central
axis in a circular pond or by rotating in an arc, making a quick
return motion after each sweep. The numbers are either set in
the pond coping, or the fountain's surrounding floor. The
sculptures (birds, fish, frogs, etc.) are made of various
materials including bronze or stainless steel as the durable
clock's mechanism is designed to handle considerable weight.
Either a cam timer or a Programmable Logic Controller (PLC)
is used as a timing mechanism. Both mechanisms aid in marking of
hours, half hours, etc., by controlling the fountain jets of the
sculptures. Additional sculptures can be placed on the pond
coping and at the designated time the jets from the main
sculptures will stop while the additional sculptures mark the
appropriate number of hours, the half hour, or the quarter hour.
Using the PLC or the cam system, the variable fountain jets can
be synchronized with sound effects, created by either synthesized
or amplified sound.
ISSUE:
Is the fountain clock classifiable as a clock?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1, HTSUS, states in part that for legal
purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
consulted. The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the
HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). The
General Explanatory Note to Chapter 91 states in pertinent part:
This Chapter covers certain apparatus designed mainly for
measuring time... [i]t includes....other timepieces
(ordinary clocks, clocks with watch movements, alarm clocks,
marine chronometers, clocks for motor vehicles,
etc.)....[t]he articles of this Chapter may be of any
material...
The water clock meets this description because it measures time
and has all the necessary elements of a clock, i.e., movement,
hands, numbers, etc..
Heading 9105 of Chapter 91 provides for other clocks. EN
91.05, p.1544, states in pertinent part:
This heading covers timekeepers, not classified elsewhere in
the Chapter, essentially constructed for indicating the time
of day...[t]he clocks classified here may be weight, spring,
electrically or electronically operated...[t]hey are often
equipped with a striking mechanism (hours, half-hours, or
quarters)....[s]ubject to the above conditions, the heading
includes: [p]ublic clocks; clocks for shops, the home
etc....
The fountain clock is classifiable in this heading because
it is constructed for indicating the time of day, it is
electronically operated, and in some instances equipped with a
striking mechanism. Its sculptures operate as hands and it has
numbers in the pond coping or around the surrounding floor to
indicate the time of day. Both the Cam and PLC are
electronically operated, and the water jets of the sculptures can
be synchronized with sound effects to denote the hour, half hour
or quarter hour. In addition, this clock will be for public use.
We understand that the clock is AC powered. If so, it is
classifiable in subheading 9105.91.80, HTSUS, which provides for
[o]ther clocks: [o]ther: battery operated or AC powered: [o]ther.
If DC powered, it is classifiable in subheading 9105.99.60, HTSUS
which provides for [o]ther clocks; [o]ther; [o]ther; valued over
$5 each.
HOLDING:
If the Le Batre fountain water clock is AC powered, it is
classifiable in subheading 9105.91.80, HTSUS, and dutiable at 30
cents each + 6.9% ad valorem on the case + 5.3% ad valorem on the
battery. The additional ad valorem rates of 6.9%(case) and
5.3%(battery) assessable under the provision are not applicable.
If DC powered it is classifiable in subheading 9105.99.60,
HTSUS which provides for [o]ther clocks; [o]ther; [o]ther; valued
over $5 each and dutiable at $0.45 each + 6.4% ad valorem.
Sincerely,
John Durant, Director