**HQ H016035**

**July 24, 2008**

**CLA-2 OT: RR: CTF: TCM:** H016035 RM

**CATEGORY:** Classification; NAFTA Preference

**TARIFF NO.:** 9506.99.55

Port Director

Champlain Service Port

United States Customs and Border Protection

237 West Service Road

Trade Compliance Division

Champlain, NY 12919

**RE:** Tariff Classification of the Turbo Liquid Solar Blanket; AFR of
Protest No. 0712-07-100196

Dear Port Director:

The following is our decision regarding the Application for Further
Review ("AFR") of Protest No. 0712-07-100196, timely filed by counsel on
behalf of Sunsolar Energy Technologies, concerning the classification of
The Turbo Liquid Solar Blanket under the Harmonized Tariff Schedule of
the United States ("HTSUS").

In reaching our decision, this office also considered information
provided by counsel during a teleconference on June 17, 2008, and in
written submissions, dated June 18, 2008, and June 19, 2008.

**FACTS**

This protest concerns The Turbo Liquid Solar Blanket (hereinafter
"Turbo"), an automatic dispenser controlled by a computerized pump that
disperses "Liquidheat™," a chemical solution, when dropped in a swimming
pool. The Liquidheat™, which consists of isopropyl alcohol, hot water,
and stearyl alcohol flakes, floats to the surface and acts to inhibit
water evaporation, thus maintaining the temperature of the pool water.

The Turbo is a sealed, fish-shaped "skin" made of flexible plastic
sheeting, which is fitted with a computerized peristaltic pump and
ballast and filled with Liquidheat™. The pump, the skin, and the ballast
(hereinafter "pump, skin & ballast assembly") are imported from China
into Canada in an assembled condition. In Canada, the product is filled
with the Liquidheat™, heat sealed, and packaged in blister packs for
shipment into the U.S. The dispenser is not re-fillable.

The goods were entered on various dates ranging from March 28 to August
19, 2006, and classified under heading 9506, specifically in subheading
9506.99.5500, HTSUS, as swimming pool accessories. On March 2, 2007, CBP
liquidated the entries under that subheading. This protest and AFR were
timely filed on July 12, 2007.

**ISSUES:**

1.  What is the proper tariff classification of the completed Turbo
    under the HTSUS?

2.  Does the Turbo qualify for preferential treatment under The North
    American Free Trade Agreement ("NAFTA")?

**LAW AND ANALYSIS:**

Initially, we note that the matter is protestable under 19 U.S.C. §
1514(a)(2) as a decision on classification. The protest was timely
filed, within 180 days of liquidation for all involved entries
(Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.
108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §
1514(c)(3) (2006)).

Further Review of Protest No. 0712-07-100196 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24(a) because the decision
against which the protest was filed is alleged to be inconsistent with a
ruling of the Commissioner of Customs or his designee, or with a
decision made at any port with respect to substantially similar
merchandise.

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 HTSUS provisions under consideration are as follows:

8424 Mechanical appliances (whether or not hand operated) for
projecting, dispersing or spraying liquids or powders; fire
extinguishers, whether or not charged; spray guns and similar
appliances; steam or sand blasting machines and similar jet projecting
machines; parts thereof:

\* \* \*

89. Other:

\* \* \*

8424.89.70 Other ...

\* \* \*

9506 Articles and equipment for general physical exercise, gymnastics,
athletics, other sports (including table-tennis) or outdoor games, not
specified or included elsewhere in this chapter; swimming pools and
wading pools; parts and accessories thereof:

\* \* \*

99. Other:

\* \* \*

9506.99.55 Swimming pools and wading pools and parts and accessories
thereof ...

The Port classified the Turbo under heading 9506, HTSUS, specifically
subheading 9506.99.5500, HTSUS, as a swimming pool accessory. Protestant
does not dispute this classification, and we agree with the Port's
determination. At issue, rather, is whether the good qualifies for NAFTA
preferential treatment. To qualify, the imported article must satisfy
the "tariff shift" requirements described in General Note 12(b)(ii) of
the HTSUS, which states, in pertinent part, that:

> \[f\]or purposes of this note, goods imported into the customs
> territory of the United States are eligible for the tariff treatment
> and quantitative limitations set forth in the tariff schedule as
> "goods originating in the territory of a NAFTA party" only if --

(i) they are goods wholly obtained or produced entirely in the territory
    of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico,
     and/or the United States so that --

> . . . . (A)  except as provided in subdivision (f) of this note, each
> of the non-originating materials used in the production of such goods
> undergoes a change in tariff classification described in subdivision
> (r), (s) and (t) of this note or the rules set forth therein. . . .

General Note 12(t)/95.09, HTSUS, states that to qualify as NAFTA
"originating," the non-originating inputs used in the production of a
good classifiable under subheading 9506.99, HTSUS, must be classifiable
under headings outside of Chapter 95, HTSUS. The Note requires "a change
to subheading 9506.99, HTSUS, from any other Chapter."

The Port submits that the non-originating pump, skin & ballast assembly
is an unfinished article with the essential character of a swimming pool
accessory of heading 9506, HTSUS. GRI 2(a) states, in part:

> \[a\]ny reference in a heading to an article shall be taken to include
> a reference to that article incomplete or unfinished, provided that,
> as entered, the incomplete or unfinished article has the essential
> character of the complete or finished article. It shall also include a
> reference to that article complete or finished (or failing to be
> classified as complete or finished by virtue of this rule), presented
> unassembled or disassembled.
>
> (Emphasis added)

The term \"essential character,\" in the context of applying GRI 2(a),
means the attribute that serves to distinguish what an article is; that
which is indispensable to the structure, core or condition of the good;
the aggregate of distinctive component parts that establishes the
identity of an article as what it is, its very essence.
[See]{.underline} HQ 967975, dated March 24, 2006.

We find that the essential character of the Turbo is imparted by the
Liquidheat™, i.e., the chemical solution that acts to keep a pool warm.
Without it, the article is simply a non-reusable dispenser, capable of
housing and dispersing any liquid for a variety of purposes, e.g., to
dispense fish food or a liquid cleaning solution. [See]{.underline} New
York Ruling Letter ("NY") N021672, dated January 16, 2008 and NY
N019913, dated March 12, 2008, respectively. We conclude, therefore,
that GRI 2(a) does not apply.

Protestant argues that the Turbo's non-originating components are
properly classified under heading 8424, HTSUS, as mechanical appliances
for dispensing liquids. Protestant likens the pump, skin & ballast
assembly to an empty dispenser, and submits that the good is not a pool
accessory until it has been filled with the chemical solution. In
support of this position, protestant cites NY L86837, dated August 11,
2005, where CBP classified an empty dual soap and lotion reservoir as a
dispenser under heading 8424, HTSUS. We agree. As discussed *supra,*
before the article is filled with Liquidheat™ and sealed, the pump, skin
& ballast assembly is a general purpose dispenser. Our conclusion is in
keeping with NY N021672, dated January 16, 2008, where CBP treated a
non-originating pump, skin & ballast assembly of a substantially similar
product used to disperse fish food as a "retail container."

**HOLDING:**

By application of GRI 1, the Turbo is properly classified under heading
9506, specifically subheading 9506.99.55, HTSUS, which provides for:
"\[a\]rticles and equipment for general physical exercise, gymnastics,
athletics, other sports (including table-tennis) or outdoor games, not
specified or included elsewhere in this chapter; swimming pools and
wading pools; parts and accessories thereof: \[o\]ther: \[s\]wimming
pools and wading pools and parts and accessories thereof." The 2006
column one, general rate of duty is 5.3 percent *ad valorem*.

By application of the tariff shift rule for heading 9506, General Note
12, HTSUS, the Turbo is eligible for preferential treatment under NAFTA
because its non-originating parts are classified under heading 8424,
specifically 8424.89.70, HTSUS, as "\[m\]echanical appliances (whether
or not hand operated) for projecting dispersing or spraying liquids or
powders; fire extinguishers, whether or not charged; spray guns and
similar appliances; steam or sand blasting machines and similar jet
projecting machines; parts thereof: \[o\]ther: \[o\]ther" when imported
into Canada.

The protest should be GRANTED. In accordance with the Protest/Petition
Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are
to mail this decision, together with the CBP 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 the decision Regulations and Rulings of the
Office of International Trade will make the decision 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