CLA-2 OT:RR:CTF:TCM H027022 JPJ
Port Director
Port of Detroit
U.S. Customs and Border Protection
477 Michigan Avenue
Room 210
Detroit, MI 48226
RE: Application for Further Review of Protest No. 3801-08-100134; Brass Diverters, Connectors, and Showerheads
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest Number 3801-08-100134, timely filed on behalf of Alsons Corporation (“Alsons”), concerning the classification of brass showerheads, diverters, and connectors under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise is described as brass diverters, connectors, and showerheads.
The Peerless® Dual Shower Arm Diverter is a chrome-plated, “Y”-shaped device consisting primarily of brass, by weight. One end of the diverter is internally threaded allowing connection to an existing shower arm. The other ends are externally threaded allowing for the connection of two showerheads to the diverter. The diverter contains two shut-off valves to control the flow of water for each showerhead connected to the diverter. Protestant states that the shut-off valves are designed to trickle water when in the “off” position in accordance with American Society of Mechanical Engineers (ASME) A112.18.1 standards, which provide, “A flow-control device shall not completely shut off the flow of water when (a) fitted to a facet or fitting; or (b) fitted to or integral with, a showerhead or hand-held shower.”
The Delta® Connector is made of brass, measures approximately one inch in length, and is installed between a shower arm and a showerhead. The internally threaded end is attached to the shower arm. The externally threaded end is connected to the showerhead. The connector contains a shut-off valve to control the flow of water. Protestant states that the primary purpose of the connector is to control the flow of water to the showerhead. Protestant states that, like the diverter, it is manufactured to ASME standards and is designed to trickle water in the “off” mode in accordance with those standards.
The brass showerheads include the Incredible Head® Power Shower Head, the Alsons® 6” Square FullSpray Head showerhead, the Delta® 8” Brass Overhead Shower Supreme showerhead, the Delta® 4” Brass Overhead Shower Supreme showerhead, the Peerless® 7” Bell Shower Head, the Peerless® Downpour Shower Head, and the Aqua Therapy™ Full Spray Rain Shower showerhead. They are made primarily of brass, by weight, and are chrome plated. According to the packaging, the showerheads are manufactured to the ASME A122.18.1 plumbing fitting supply standard. None of the showerheads provides variable water spray options.
The Incredible Head® Power Shower Head incorporates a hand-operated valve mechanism, that is, a cut-off valve, which allows the user to control the flow of water from the showerhead. The packaging indicates that the optional pushbutton cut-off valve allows one to cut the flow of water to a trickle when soaping up. The remaining showerheads do not incorporate cut-off valve mechanisms.
The merchandise was entered on entry numbers 115-XXXX423-0, date of entry 11/11/07 and date of liquidation 2/1/08; 115-XXXX324-0, date of entry 11/5/07 and date of liquidation 2/1/08; and WU6-XXXX867-9, date of entry 12/2/07 and date of liquidation 2/29/08 under heading 7419, HTSUS, at a duty rate of Free. Two Notices of Action (CBP Form 29), one dated 01/08/08, for entry numbers 115-XXXX423-0 and 115-XXXX324-0, and one dated 02/04/2008, for entry number WU6-XXXX867-9, were issued. The entries were rate advanced and the merchandise was reclassified under subheading 7418.20.10, HTSUS, at a duty rate of 3%. Alsons protests the liquidation of the merchandise under subheading 7418.20.10, HTSUS. The port retracted the rate advance for the diverters and connectors.
ISSUE:
What is the correct classification of the brass diverters, connectors, and showerheads under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter protested 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 of the first entry for entries made on or after December 18, 2004. (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. 3801-08-100134 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 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 with respect to the same or substantially similar merchandise.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The 2007 HTSUS provisions under consideration are as follows:
7418 Table, kitchen or other household articles and parts thereof, of copper; pot scourers and scouring or polishing pads, gloves and the like, of copper; sanitary ware and parts thereof, of copper:
7419 Other articles of copper:
Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof:
Section XV, Note 1(f) states, in relevant part:
This section does not cover:
(f) Articles of section XVI (machinery, mechanical appliances and electrical goods);
EN 84.81 states, in relevant part:
This heading covers taps, cocks, valves and similar appliances, used on or in pipes, tanks, vats or the like to regulate the flow (for supply, discharge, etc.) of fluids (liquid, viscous or gaseous), or, in certain cases, of solids (e.g. sand). The heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or a gas.
The appliances regulate the flow by opening or closing an aperture (e.g., gate, disc, ball, plug, needle or diaphragm). They may be operated by hand (by means of a key, wheel, press button, etc.), or by a motor, solenoid, clock movement, etc., or by an automatic device such as a spring, counterweight, float lever, thermostatic element or pressure capsule.
Protestant argues that the brass showerheads are properly classifiable under heading 7419, HTSUS, and cites two New York Ruling letters (NY) G85952, dated January 17, 2001, and NY I81519, dated June 4, 2002. NY G85952 determined that a chrome-plated, brass shower head was classifiable under subheading 7419.99.50, HTSUS; and NY I81519 determined, in relevant part, that brass shower heads were classifiable under subheading 7419.99.50, HTSUS.
Protestant also cites two CBP rulings, NY R01416, dated February 23, 2005, and NY F87785, dated June 2, 2000, which classified brass showerheads under heading 7418, HTSUS. NY F87785 and NY R01416 classified a fixed mount Eurostyle shower head made of chrome-plated brass, and a decorative “Water Blossom” shower head made of galvanized steel with flower petals made of brass sheeting and a connector made of copper, respectively, under subheading 7418.20.10, HTSUS. Protestant notes that they are inconsistent with NY G85952 and NY I81519, and argues that NY R01416 and NY F87785 are incorrect. Protestant argues that the common and commercial meaning of the tariff term “sanitary ware” found in the text of heading 7418, HTSUS, does not provide for brass diverters, connectors, or showerheads, and that pursuant to GRI 1, the classification of the brass diverters, connectors, and showerheads is correct under heading 7419, HTSUS.
As NY G85952 and NY I81519 were in effect at the time the merchandise was entered and the Alsons® 6” Square FullSpray Head showerhead, the Delta® 8” Brass Overhead Shower Supreme showerhead, the Delta® 4” Brass Overhead Shower Supreme showerhead, the Peerless® 7” Bell Shower Head, the Peerless® Downpour Shower Head, and the Aqua Therapy™ Full Spray Rain Shower showerhead are substantially similar to the articles in NY G85952 and NY I81519, CBP must allow the protest with respect to these items. We acknowledge that NY F87785, dated June 2, 2000 and NY R01416, dated February 23, 2005, classified brass showerheads in heading 7418, HTSUS. We are in the process of reviewing these inconsistent rulings. Please be advised that we intend to initiate a notice and comment procedure pursuant to 19 C.F.R. §1625 to reconsider these rulings, which we will publish in the Customs Bulletin.
However, we find that the Incredible Head® Power Shower Head, the Peerless® Dual Shower Arm Diverter, and the Delta® Connector are described by heading 8481, HTSUS, because each appliance regulates the flow of fluids. Each incorporates a hand-operated valve mechanism which allows the user to control the flow of water from a showerhead. The Incredible Head® Power Shower Head and the Delta® Connector each regulates the flow of water by means of a push-button control. The Peerless® Dual Shower Arm Diverter regulates the flow of water by means of a knob. By activating the push-button or by turning the knob, the user either opens or changes the water flow. Therefore, assuming that these appliances do not have a pressure rating of 850kPa or over, they are provided for as other hand operated appliances of copper in subheading 8481.80.10, HTSUS.
Our determination is consistent with Headquarters Ruling (HQ) 962600, dated November 3, 1999, which classified, in relevant part, showerheads with valves used for the control of water flow by means of turning the showerhead’s lever under subheading 8481.80.10, HTSUS. See also, NY 862396, dated May 1, 1991 (two valve tub/shower faucet unit, including shower head, shower arm, and shower flange, a solid brass water way with acrylic handle and brass flange, and chrome plated zinc tub spout; faucet sold as set; essential character determined to be the control valves; applicable subheading for the two valve tub/shower faucet subheading 8481.80.10, HTSUS). Further, appliances of heading 8481, HTSUS are articles of Section XVI, HTSUS. Articles of Section XVI are excluded from chapter 74 by note 1(f) to Section XV.
HOLDING:
Pursuant to GRI 1, the brass showerheads described as the Alsons® 6” Square FullSpray Head showerhead, Delta® 8” Brass Overhead Shower Supreme showerhead, Delta® 4” Brass Overhead Shower Supreme showerhead, Peerless® 7” Bell Shower Head, Peerless® Downpour Shower Head, and Aqua Therapy™ Full Spray Rain Shower showerhead are classified in subheading 7419.99.50, HTSUS, which provides for “Other articles of copper: Other: Other: Other: Other, Brass plumbing goods not elsewhere specified or included”. The 2007 general, column one rate of duty is Free.
Pursuant to GRI 1, the Incredible Head® Power Shower Head, Peerless® Dual Shower Arm Diverter, and Delta® Connector are classified in subheading 8481.80.10, HTSUS, which provides for “Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof: Other appliances: Hand operated: Of copper”. The 2007 general, column one rate of duty is 4% ad valorem.
You are instructed to deny Protest No. 3801-08-100134, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance.
In accordance with Sections IV and VI of the CBP 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 this decision must be accomplished prior to the 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