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HQ 953474

June 11, 1993

CLA-2 CO:R:C:M 953474 MMC


TARIFF NO.: 9105.91.80

Mr. Richard T. Soper
Fountains and Landscapes Ltd.
9 Gap View Road
Short Hills, N.J. 07079

RE: Le Batre Fountain Water Clock; EN 91.05

Dear Mr. Soper:

This in response to a letter of October 20, 1992, and subsequent correspondence, submitted to the Area Director of Customs in New York, by the Irish Trade Board on behalf of Fountains and Landscapes Ltd., requesting classification of the Le Batre Fountain Water Clock under the Harmonized Tariff Schedule of the United States (HTSUS). The letters were forwarded to this office for a reply.


The article is described by the submitted literature as a water clock suitable for courtyards, shopping malls, hotel foyers, estates and ornamental gardens. Two fountain sculptures with water jets function as hands by either rotating on a central axis in a circular pond or by rotating in an arc, making a quick return motion after each sweep. The numbers are either set in the pond coping, or the fountain's surrounding floor. The sculptures (birds, fish, frogs, etc.) are made of various materials including bronze or stainless steel as the durable clock's mechanism is designed to handle considerable weight.

Either a cam timer or a Programmable Logic Controller (PLC) is used as a timing mechanism. Both mechanisms aid in marking of hours, half hours, etc., by controlling the fountain jets of the sculptures. Additional sculptures can be placed on the pond coping and at the designated time the jets from the main sculptures will stop while the additional sculptures mark the appropriate number of hours, the half hour, or the quarter hour. Using the PLC or the cam system, the variable fountain jets can be synchronized with sound effects, created by either synthesized or amplified sound.


Is the fountain clock classifiable as a clock?


Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1, HTSUS, states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). The General Explanatory Note to Chapter 91 states in pertinent part:

This Chapter covers certain apparatus designed mainly for measuring time... [i]t includes....other timepieces (ordinary clocks, clocks with watch movements, alarm clocks, marine chronometers, clocks for motor vehicles, etc.)....[t]he articles of this Chapter may be of any material...

The water clock meets this description because it measures time and has all the necessary elements of a clock, i.e., movement, hands, numbers, etc..

Heading 9105 of Chapter 91 provides for other clocks. EN 91.05, p.1544, states in pertinent part:

This heading covers timekeepers, not classified elsewhere in the Chapter, essentially constructed for indicating the time of day...[t]he clocks classified here may be weight, spring, electrically or electronically operated...[t]hey are often equipped with a striking mechanism (hours, half-hours, or quarters)....[s]ubject to the above conditions, the heading includes: [p]ublic clocks; clocks for shops, the home etc....

The fountain clock is classifiable in this heading because it is constructed for indicating the time of day, it is electronically operated, and in some instances equipped with a striking mechanism. Its sculptures operate as hands and it has numbers in the pond coping or around the surrounding floor to indicate the time of day. Both the Cam and PLC are electronically operated, and the water jets of the sculptures can be synchronized with sound effects to denote the hour, half hour or quarter hour. In addition, this clock will be for public use.

We understand that the clock is AC powered. If so, it is classifiable in subheading 9105.91.80, HTSUS, which provides for [o]ther clocks: [o]ther: battery operated or AC powered: [o]ther. If DC powered, it is classifiable in subheading 9105.99.60, HTSUS which provides for [o]ther clocks; [o]ther; [o]ther; valued over $5 each.


If the Le Batre fountain water clock is AC powered, it is classifiable in subheading 9105.91.80, HTSUS, and dutiable at 30 cents each + 6.9% ad valorem on the case + 5.3% ad valorem on the battery. The additional ad valorem rates of 6.9%(case) and 5.3%(battery) assessable under the provision are not applicable.

If DC powered it is classifiable in subheading 9105.99.60, HTSUS which provides for [o]ther clocks; [o]ther; [o]ther; valued over $5 each and dutiable at $0.45 each + 6.4% ad valorem.


John Durant, Director

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