CLA-2 RR:CTF:TCM 967936 BAS
Ms. Diane Louise Pingarelli
Manager
MercAsia USA, Ltd.
1501 Gary Street
Bethlehem, PA 18018
RE: Classification of a Decorative Glass Water Fountain with Pump
Dear Ms. Pingarelli:
This is in reply to your electronic request submitted on September 8, 2005, on behalf of MercAsia USA, Ltd. seeking a binding ruling concerning the classification of an etched glass fountain, 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:
The merchandise at issue is a glass decorative fountain, which is framed in aluminum and incorporates a pump that generates a fountain effect. The fountain is 27.5 inches in width, 15 1/8 inches in depth and 72 1/8 inches in height. The fountain is composed of cast aluminum, aluminum tubing and a tempered glass panel. The glass panel is rectangular in shape and depicts a bird and some vegetation. The product has a powder coating finish.
The material breakdown by value of the fountain is as follows: 48.54% aluminum, 7.57% stainless steel, 6.51% PVC, 17.50% glass and 19.88% electric components. The material breakdown of the fountain by
weight is as follows: 37.58% aluminum, 9.04% stainless steel, 1.47% PVC, 45.54% glass and 6.37% electric components. The fountain is to be imported from China.
ISSUE:
Is the subject merchandise classifiable under heading 8306 as a metal article, under heading 7013, HTSUSA, as a decorative glass article, or under 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 the etched glass fountain is composed of 37.58% aluminum, by weight and as the aluminum accounts for 48.54 percent of the item’s value, it is described in part by Heading 8306, which provides for, inter alia, articles of base metal. As the water pump accounts for 19.88% of the material cost of the item and 6.37% of its weight, it is also prima facie provided for in Heading 8413, HTSUSA, as “pumps for liquids.” In addition, as 45.54% of the etched glass fountain is attributable to the glass in terms of weight it constitutes the most significant portion of the body of the article. Therefore, it is described also in part under heading 7013, HTSUSA, as a decorative glass article.
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 a tabletop fountains 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). At issue in Conair were Serenity Ponds which consisted of a pump and a decorative sculpture made of plastic simulated rocks and natural stones. While the merchandise in the present case is also a decorative fountain, it is slightly different from the merchandise in Conair in that it has etched glass as opposed to simulated rocks and stones. In Conair, 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. In Conair the CIT stated that in order to determine the essential character of composite merchandise under the TSUS, the Court has sought to determine which component is indispensable to the merchandise. Id. at 15; citing Oak Laminates Div. Of Oak Materials Group v. United States, 8 CIT 175, 180, 628 F. Supp. 1577, 1581 (1984). The “essential character is that which is indispensable to the structure, core, or condition of the article, i.e, what it is.” Id. The inquiry is factual in nature and therefore will depend significantly on the circumstances of each individual case.
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 glass and aluminum as opposed to plastic, as in Conair, the construction and function of the etched glass fountains at issue is substantially similar to the Serenity Ponds at issue in Conair. That is, the subject merchandise and the merchandise in Conair are decorative articles that generate a fountain effect. Like the fountain in Conair, the item at issue 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) tubing; (4) a power cord; and (5) various objects, such stone or glass 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 may 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.
Even though the aluminum accounts for 48.54% of the fountain’s value and 37. 58% of its weight and the glass accounts for 17.5% of its value and 45.54% of its weight, applying the rationale in Conair to the subject merchandise, we find that the essential character of the Etched Glass Fountain 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 glass fountain is designed to recreate the relaxing sounds of nature in any environment. The etched glass fountains, like the Serenity Ponds, are intended to appeal to the “visual and auditory senses” of the consumer. The water flowing over the etched glass 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 etched glass 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 fountain is classified under heading 8413, HTSUSA, by application of GRI 3(b).
HOLDING:
By application of GRI 3(b), the Etched Glass Fountain, is 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