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HQ 964680




November 21, 2001

CLA-2 RR:CR:GC 964680 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50

Mr. Peter J. Fitch
Fitch, King and Caffentzis
116 John Street
New York, N.Y. 10038

RE: Reconsideration of NY G80140; “Quietude fountain”

Dear Mr. Fitch:

This is in reply to your letter of August 31, 2000, to the Customs National Commodity Specialist Division, New York, on behalf of the Pomeroy Collection, Ltd., requesting reconsideration of New York Ruling Letter (“NY”) G80140, dated August 15, 2000, concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the “Quietude” fountain. NY G80140 classified the article under subheading 7013.99.50, HTSUS, which provides 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. Your request was forwarded to this office for reply. A sample was provided for our consideration. We regret the delay.

FACTS:

The article was described in NY G80140 as follows:

The subject article, which is identified as the “Quietude Fountain”, is a tabletop decoration consisting of a glass bowl, a metal stand, plastic tubing, 7.8 pounds of large, unpolished rocks shipped in a net bag, a pillar candle and an electric pump. The glass bowl measures approximately twelve and one-half inches in diameter and three and one-half inches in height. The metal stand measures approximately seven and one-half inches in height. The candle measures approximately three inches in diameter and two inches in height. Values for the components were also provided.

In the August 31, 2000 submission, you allege that the article is alternatively classifiable under headings 8306 or 8413, HTSUS, which provide for statuettes and other ornaments of base metal and pumps for liquids, whether or not fitted with a measuring device, respectively. You argue that Headquarters Ruling Letter (HQ) 958866, dated April 16, 1996, requires classification of the article under heading 8306, HTSUS. Your alternative argument is that pursuant to GRI 3(b), the electric pump imparts the essential character to the composite article and therefore the article should be classified as a pump under heading 8413, HTSUS. Finally, you allege that there is a distinction between a “composite article” and a “set” for tariff purposes and that this distinction bolsters your conclusions.

ISSUE:

Whether the article is classifiable under heading 8306, HTSUS, which provides for, inter alia, statuettes and other ornaments of base metal; under heading 8413, HTSUS, which provides for pumps for liquids, whether or not fitted with a measuring device; or under heading 7013, HTSUS, which provides for glassware of a kind used for... indoor decoration or similar purposes?

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 may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor 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. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

7013 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:
7013.99.50 Valued over $0.30 but not over $3 each. 8306 Bells, gongs and the like, non-electric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof:
Statuettes and other ornaments, and parts thereof: 8306.29.00 Other.

8413 Pumps for liquids, whether or not fitted with a measuring device ... 8413.70 Other centrifugal pumps:
8413.70.20 Other.

We are unable to resolve the classification of the “Quietude” fountain at GRI 1. GRI 2 is not applicable here except insofar as it provides that “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3."

GRI 3 provides as follows:

When, by application of rule 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 or to part only of the items in a set put up for retail sale, 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, 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.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

EN (IX) to GRI 3(b) provides:

For purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

EN (VIII) to GRI 3(b) provides:

The factor which determines the 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.

Pursuant to GRI 3(a), the article is a composite good prima facie classifiable under more than a single heading, i.e., headings 2517 (the unpolished rocks), 3406 (candle), 7013 (the glass bowl), 8306 (the metal stand) and 8413, HTSUS (the pump).

We concur with your argument concerning the distinction between a “composite article” and a “set” for tariff purposes. The ENs to GRI 3 elaborate that the distinction is this: the components of “sets” are not only intended to work toward the same purpose; they are also related to one another. That is, they are used in conjunction with one another toward the fulfillment of that common purpose. By contrast, a composite article is one that consists of distinct components grouped together to comprise a functional whole. See HQ 959515 dated May 27, 1997, for a thorough analysis of the “composite article” versus “set” issue. See also the Informed Compliance Publication (“ICP”) entitled, “What Every Member of the Trade Community Should Know About: Classification of Sets under the HTS”, dated September, 1999, available at www.customs.gov.

As regards the essential character of the goods, we note several decisions by the Court of International Trade (CIT) which addressed “essential character” for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. The Court examined the role of the constituent materials in relation to the use of the goods and found that, although the relative value of the textile curtain was greater than that of the plastic liner, and that although the textile curtain also served protective, privacy and decorative functions, because of the fact that the plastic liner served the indispensable function of keeping water inside the shower, the plastic liner imparted the essential character upon the set. See also Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co. v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995), in which the Court also looked to the role of the constituent material in relation to the use of the goods to determine essential character.

The indispensable function of the “Quietude” fountain is that of a decorative article. The article is intended to be and serves the role of a decoration, i.e., it has no utilitarian value but is wholly ornamental. As such, we must determine which of its components imparts the essential character to the article as a whole.

We believe that neither the unpolished rocks nor the candle impart the essential character to the whole. The rocks appear to be ordinary - oblong shaped, smooth, of unremarkable quality or color. Their presence in the product is to diffuse or redirect the water that will be circulated. It is in this manner that the rocks “contribute” to the decorative role of the good, and we find that the presence of the rocks adds to the appearance and role of the whole without imparting the essential character to the article. Likewise, while the lit candle may draw attention to the article, its presence merely contributes to the appearance of the component good as a whole. Similarly, the candle is ordinary in every respect. Thus, we conclude that neither the rocks nor the candle impart the essential character of the good and accordingly the article is not classifiable under heading 2517 or 3406, HTSUS.

We liken the metal stand to a candle holder. Although the metal stand is the component with the greatest height, it functions to elevate the candle in an ancillary function. Housed in the glass bowl with the rocks and elevating the candle, the metal stand merely contributes to the appearance of the whole. The metal stand does not impart the essential character to the article.

We disagree with your argument that it is the electric pump that imparts the essential character of the article requiring classification under heading 8413, HTSUS, which provides for pumps. The “Quietude” fountain serves a decorative function without the pump, e.g., when the pump is not functioning. The candle and rocks contained in the glass bowl also contribute to the overall appearance and character of the article. We do not believe that the sound of the water is sufficient or serves sufficient enough of a purpose to change our view as to the classification of the fountain. See HQ 964361, dated August 6, 2001, for a similar ruling on a “calming pond.”

Pursuant to GRI 3(b), we find that the glass bowl imparts the essential character of the “Quietude” fountain. Essential character has frequently been construed to mean the attribute that strongly marks or serves to distinguish what an article is. After a careful consideration of this issue, we determine that the “Quietude” fountain is essentially a decorative article of glass. The glass bowl organizes and houses all of the components that comprise the complete decoration; the glass bowl holds the water necessary to complete the fountain; and the glass bowl attracts the attention of the observer. Accordingly, based upon our determination that the essential character of the “Quietude” fountain is as an article of glass, we find that it is provided for in heading 7013, HTSUS, and is classified in subheading 7013.99.50, HTSUS, which provides 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. Our determination is consistent with the following rulings on similar articles:

In HQ 958866 dated April 16, 1996, Customs found a copper tabletop water garden to be classified in subheading 8306.29.00, HTSUS, as: “... statuettes and other ornaments, of base metal ...” The article there was described as follows: “... a four leaf shaped copper fountain unit connected through copper ‘stems’ to a plastic water reservoir and pump powered by an electric cord and 3-pronged plug, a copper planter and a decorative rock package. The literature included with the sample describes the article as an ‘indoor fountain’.” In HQ 958866, we stated:

Customs is of the opinion that the tabletop garden is a base metal decorative article. It has no utility value but is wholly ornamental. Its only usefulness is to contain or support other decorative articles, specifically a fountain and silk flowers.

This finding is consistent with New York Ruling Letter (NYRL) 815143 dated October 16, 1995, in which Customs determined that an indoor wooden planter and fountain was classifiable under subheading 4421.90.98, HTSUS, as an other article of wood.

In HQ 956353 dated May 26, 1994, Customs found a “village animated skating pond” to be classified in subheading 3926.40.00, HTSUS, as: “Other articles of plastics ... : ... Statuettes and other ornamental articles.” The good therein consisted of a large plastic base which gave the appearance of a skating pond, a synchronous motor and cord located in the base, and six plastic figures. In classifying the good pursuant to GRI 3(b), we stated:

In our opinion the plastic skating pond, as compared to the motor and other plastic components, distinguishes the article. Although the motor allows the figures to move around the pond, it is the skating pond that essentially provides the article’s ornamental and decorative appeal in addition to constituting the greatest bulk and weight. A consumer is likely to purchase the article for the specific scene it depicts. Furthermore, it is apparent that even when the motor is turned off, the skating pond will continue to be displayed in one’s home for ornamental purposes. The motor primarily serves to embellish the overall ornamental effect of the Village Animated Skating Pond.

In NY F83276 dated March 15, 2000, Customs held the model CP-1 “calming pond” to be classified in subheading 3926.40.00, HTSUS as: “Other articles of plastics: ... Statuettes and other ornamental articles.” This classification was affirmed in HQ 964361, dated August 6, 2001. In NY E84043 dated July 27, 1999, Customs classified a decorative “calming pool” in subheading 3926.40.00, HTSUS, as: “Other articles of plastics... Statuettes and other ornamental articles.” The good therein consisted of a submersible pump, a resin plate containing slate rocks and stones, natural looking driftwood with a painted orchid, and a wrought iron stand. In NY A89712 dated December 19, 1996, Customs classified a plastic house waterfall in subheading 3926.40.00, HTSUS, as: “Other articles of plastics... Statuettes and other ornamental articles.” The article consisted of a plastic house with trees, flowers, and waterfall (all of plastic), a rock wall setting, a plastic water reservoir, and an electric-powered pump. In NY G84772 dated February 14, 2001, Customs classified a water fountain, described as “a decorative tabletop agglomerated stone article that operates with the use of a UL adjustable water pump,” in subheading 6810.99.00, HTSUS. In NY D85475 dated January 22, 1999, Customs classified an “angelic musical water fountain” in subheading 6810.99.00, HTSUS. The good therein was a decorative, three-dimensional agglomerated stone water fountain figurine with a self-contained, battery-operated pump and sound chip.

In HQs 965163 and 965164, both dated August 6, 2001, a tabletop water fountain and an angel fountain, respectively, were classified pursuant to GRI 3(b). In both rulings it was the constituent material of the decorative article that was determined to impart the essential character to the articles.

HOLDING:

The “Quietude” fountain is classified under subheading 7013.99.50, HTSUS, which provides 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.

EFFECT ON OTHER RULINGS:

NY G80140 is affirmed.

Sincerely,

John Durant, Director

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