CLA-2 OT: RR:CR:GC W967689 ARM
Port Director
U.S. Customs and Border Protection
6747 Engle Road Middleburg Heights, OH 44130
RE: Protest 4101-05-100106; Flora Mist™ ultrasonic fountain
Dear Port Director:
The following is our decision regarding Protest 4101-05-100106, filed by Pearlessence LTD, against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Flora Mist™ ultrasonic fountain from China. The merchandise referred to in the protest was entered on September 3, 2004, and liquidated January 3, 2005, in subheading 7013.99.90 HTSUS, the provision for glassware of a kind used for... indoor decoration or similar purposes... other glassware: other: other: valued over thirty cents but not over three dollars each. The protest was timely filed on March 1, 2005, claiming classification in accordance with New York Ruling Letters (NY) J80277, dated February 19, 2003, NY K83574, dated March 25, 2004, and NY J84258, dated May 28, 2003, in subheading 8543.89.96, HTSUS, the provision for other electrical machines and apparatus, …, not specified or included elsewhere in Chapter 85.”
FACTS:
The merchandise is described as a tabletop fountain. It consists of decorative glass bowl and base containing an electrically powered ultrasound device fitted with LED lamps. The merchandise is electrically powered through an AC adaptor or transducer rather than through a motor. When water and essential oils are added, the device uses vibration to create a colored and aromatic mist.
ISSUE:
Is this tabletop fountain classified as a decorative article of glass or as an electrical apparatus?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 thorugh 6 may be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS subheadings under consideration are as follows:
Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
Other glassware:
7013.99 Other:
Other:
Other:
Valued over $3 each:
Other:
7013.99.90 Valued over $5 each.
* * * * *
Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and apparatus:
8543.89 Other :
Other:
Other:
8543.89.96 Other.
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 they consisted of the material or component which gives them their essential character, insofar as this criterion is
applicable.
Here, the tabletop fountain consists of different components, a glass bowl and an ultrasound device fitted with LED lamps, and therefore meets the
definition of a composite good under GRI 3(b). Explanatory Note (VIII) (p.4) to GRI 3(b) provides 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.
In Conair Corp. v. United States, 27 Int’l Trade Rep. (BNA) 2034; 2005 Ct. Intl. Trade LEXIS 104; SLIP OP. 2005-95; 27 Int'l Trade Rep. (BNA) 2034, August 12, 2005, the court considered the classification of a tabletop fountain called Serenity Pond. The merchandise consisted 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." Id. at 4. CBP argued that the merchandise was classified as an article of plastic, the decorative component being the one that provides its essential character. The court found that the pump provided the essential character of the article and classified the fountain in subheading 8413.70.2004, HTSUS, as "Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; part thereof; . . . Other centrifugal pumps . . . Other . . . Submersible pumps."
In so doing, the court states:
The direction given in the Explanatory Note to GRI 3(b) favors the court's conclusion. “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 pump's role in relation to the use of the Serenity Ponds is essential. While the plastic component contributes to the manner in which the water flows, and thus to the Serenity Ponds' auditory and visual appeal, without the pump the water doesn't flow at all. 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 Ponds are properly classified as if they consisted of that component.
Id. at *24-25.
Applying the court’s finding in Conair makes it clear that the essential character of the instant misting fountain is provided by the ultrasonic device. The Serenity Ponds of Conair, supra, and the instant misting fountain are both items which, while decorative on their own, would not be purchased absent the flowing water or mist. Both items refer to the water feature in their names. Both items are marketed for the water feature. Both items are used for the water feature, even though their decorative appearance is not offensive when the water feature is turned off. In other words, both items are more essentially defined by their mechanical component than by the decorative component. The decorative component simply makes them a machine or appliance that need not be stored in a cupboard if turned off. These decorative tabletop fountains or misting machines can be left out on the table as a decorative item when not pumping or misting just like stylish coffee makers and blenders are left out on the counter in designer kitchens even when not in use. Their decorative appearance is subordinate to the mechanized quality of the article in that it is an enhancement, not the raison d’etre of the product.
Therefore, the instant merchandise is classified in heading 8543, HTSUS, as well, specifically in subheading 8543.89.96, HTSUS, which provides for: “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other.” This finding is consistent with CBP rulings which classified ultrasonic misting fountains as to the ultrasound device in heading 8543, HTSUS. (See New York Ruling Letters (NY) J80277, dated February 19, 2003, NY K83574, dated March 25, 2004, and NY J84258, dated May 28, 2003).
HOLDING:
The Protest is granted. By application of GRI 3(b), the Flora Mist™ ultrasonic fountain is classified in heading 8543, specifically subheading 8543.89.96, HTSUS, which provides for: “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other.” The column 1, “General” duty rate for 2004 is 2.6%.
Duty rates are provided for the protestant’s 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.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of this letter, the Office of International Trade will make this letter available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division