HQ W967689

March 17, 2008

CLA-2 OT: RR:CR:GC W967689 ARM

**CATEGORY:** CLASSIFICATION

**TARIFF NO.:** 8543.89.96

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:

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:
>
> Valued over \$3 each:
>
> Other:
>
> 7013.99.90 Valued over \$5 each.

\* \* \* \* \*

8543. 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]{.underline}, 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]{.underline} makes it clear that
the essential character of the instant misting fountain is provided by
the ultrasonic device. The Serenity Ponds of [Conair]{.underline},
*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](http://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](http://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