OT:RR:CTF:CPMM H251048 CKG
TARIFF NO: 3922.90.00
Port Director
U.S. Customs and Border Protection
Port of Cleveland
6747 Engle Road
Middleburg Heights, OH 44130
ATTN: Lisa M. Olsen
Supervisory Import Specialist
Re: Application for Further Review of Protest No. 4101-13-101137; classification
of shower drains
Dear Port Director,
This is in response to the Application for Further Review of Protest 4101-13-101137, dated October 16, 2013. The Protest and AFR were filed on behalf of Oatey Supply Chain Services, Inc. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of two entries of low profile shower drains in heading 3922 of the Harmonized Tariff Schedule of the United States (HTSUS).
Protestant entered the protested merchandise on April 12, 2013, in heading 7324, HTSUS, as sanitary ware of iron or steel. The entries were liquidated on August 22, 2013, in heading 3922, HTSUS, as baths, shower-baths, sinks, wash-basins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware, of plastics. Protestant asserts that the subject merchandise should be classified, as entered, in heading 7324, HTSUS.
FACTS:
The merchandise at issue consists of seven types of shower drains, identified as Oatey part nos. 42213, 422373, 42251, 42210, 42238, and 42219. Two samples were submitted with the AFR request: part no. 42237 is a drain with a PVC body and a square stainless steel strainer, and part 42213 is a drain with a PVC body and a round stainless steel strainer.
All styles at issue are described as low profile shower drains, consisting of a polyvinyl chloride body with removable stainless steel strainers. They are designed for use with tile or marble showers where a shower pan liner is used. The drain extends a standard water pipe through the mortar, mud base and tile or shower pan at the base of the shower and features an adjustable drain barrel that allows the user to adjust the height of the drain so that it lies flush with the floor. The strainer consists of a square or round 4-inch wide steel grate with multiple perforations which prevent large particles from entering and clogging the drains. The strainer is replaceable and may be purchased separately in a variety of finishes, including brass, nickel, bronze, chrome, and plastic.
The cost breakdown of the components at issue is provided for part nos. 42213, 42237, and 422373. For part no. 42213, the value of the components is stated to be 2.3 for the stainless steel strainer, 1.0 for the pvc barrel, 1.0 for the plastic locking ring, and 2.0 for the pvc base. For part nos. 42237 and 422373, the same cost summary is provided: the pvc locking ring is estimated at 1.0, the pvc base at 2.0, and the strainer at 2.5.
ISSUE:
Whether the instant shower drains are classifiable as articles of plastic in Chapter 39, or as articles of iron or steel of Chapter 73
Whether the drains are classifiable as sanitary ware of heading 3922 or heading 7324, as other articles of plastic in heading 3926, or as other articles of iron or steel in heading 7326.
LAW AND ANALYSIS:
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. 4101-2013-101137 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 by CBP with respect to the same or substantially similar merchandise.
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, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The HTSUS provisions under consideration are as follows:
3922: Baths, shower-baths, sinks, wash-basins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware, of plastics.
3926: Other articles of plastics and articles of other materials of headings 39.01 to 39.14.
7324: Sanitary ware and parts thereof, of iron or steel.
7326: Other articles of iron or steel.
* * * *
GRI 3 states, in pertinent part:
When by application of [GRI] 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 . . . , 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 . . . 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.
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 39.22 provides as follows:
This heading covers fittings designed to be permanently fixed in place, in houses, etc., normally by connection to the water or sewage systems. It also covers other sanitary ware of similar dimensions and uses, such as portable bidets, baby baths and camping toilets.
Flushing cisterns of plastics remain classified in this heading, whether or not equipped with their mechanisms.
However, the heading excludes:
(a) Small portable sanitary articles such as bed pans and chamber pots (heading 39.24).
(b) Soap dishes, towel rails, tooth brush holders, toilet paper holders, towel hooks and
similar articles for bathrooms, toilets or kitchens; these articles fall in heading 39.25 if intended for permanent installation in or on walls or other parts of buildings, otherwise in heading 39.24.
EN 73.24 provides, in pertinent part, as follows:
This heading comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for sanitary purposes.
…
The heading includes, baths, bidets, hip-baths, foot-baths, sinks, wash basins, toilet sets; soap dishes and sponge baskets; douche cans, sanitary pails, urinals, bedpans, chamber pots, water closet pans and flushing cisterns whether or not equipped with their mechanisms, spittoons, toilet paper holders.
* * * *
Protestant seeks classification of the instant merchandise in heading 7324, HTSUS, as sanitary ware of iron or steel. The drains were liquidated in heading 3922, HTSUS, as sanitary ware of plastics. As the instant drains are composed primarily of plastic and steel, they are not described at GRI 1 by either heading; we must therefore turn to GRI 3 to determine the correct classification.
The headings at issue each describe only part of the instant drains; therefore, none of the headings under consideration is more specific for the purposes of GRI 3(a). We thus turn to GRI 3(b). EN VIII to GRI 3(b) explains that "[t]he 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 the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the each material or component in relation to the use of the goods. See Structural Industries, 360 F. Supp. 2d 1330 (Ct. Int’l Trade 2005); Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). The “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1336.
In both of the provided samples, the entire drain body (including the pvc locking ring and the base) is made of plastic, which predominates in bulk and surface area, and likely also in weight. Based on the provided cost breakdowns, the plastic body also accounts for a greater share of the cost of the drain. Finally, the plastic body also plays the most important role in the use of the good. The primary function of the drain is to direct the water from the shower to the rest of the building’s plumbing system, specifically the drain pipe. The adjustable plastic base allows the drain to accommodate a variety of shower floors of different thickness and materials, while preventing seepage of the water through the floor. The steel strainer, in turn, prevents hair and other materials from clogging the drainage system; while important, this role is secondary to the main purpose of the device, i.e., to actually drain and channel the water from the shower into the plumbing system. This role is served by the PVC drain body.
Protestant argues that the essential character of the items at issue is imparted by the stainless steel strainer, because the essential function of the drain is to filter the shower water before it reaches the drain pipe. While stopping solid matter from entering the water system is of course a key function of the instant shower drains, we disagree that this is the essential purpose of the drain; the drain’s function is to connect the shower base to the plumbing system and drain the wastewater from the shower. The drain base is essential for this function; the strainer is not. Thus, the plastic drain body imparts the essential character to the instant drains, which are classified in Chapter 39, as articles of plastic.
Protestant cites to several rulings in support of its claimed classification in heading 7324, HTSUS: NY 883008, NY N103859, NY 889651, and NY 803902. We note that in NY 883008, NY N103859 and NY 803902, the merchandise was described as made of either cast iron or stainless steel. No plastic components were present. In NY 889651, one basket strainer (“sample B”) made of stainless steel and plastic was classified in 7324, HTSUS, because the bulk of the strainer was made of steel, and only the lower part that connected to the drain tube was made of plastics. The instant drains, as discussed above, are made mostly of plastic, and as it is the plastic body which imparts the essential character to the drains, they cannot be classified in Chapter 73 as articles of steel, sanitary or otherwise.
Within Chapter 39, two headings are implicated; heading 3922, HTSUS, for sanitary ware of plastics, and heading 3926, HTSUS, for other articles of plastic. Specifically, heading 3922 covers “Baths, shower-baths, sinks, wash-basins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware, of plastics.” Baths and showers are types of sanitary ware described eo nomine in EN 39.22, and classified as such by CBP. See e.g., NY F86442, dated May 18, 2000 and NY F85510, dated May 4, 2000, classifying portable showers in heading 3922. Shower drains, as an integral component of the shower system, could be considered parts of sanitary ware; however, heading 3922 does not provide for parts of sanitary ware. The question is, therefore, whether they are included in the scope of “similar sanitary ware.”
The Macmillan Dictionary, available at www.macmillandictionary.com, defines
“sanitary” as “relating to people’s health, especially to the system of supply water and dealing with human waste.” “Sanitary ware” is also defined at www.dictionary.reference.com as: “plumbing fixtures, as sinks or toilet bowls, made of ceramic material or enameled metal.” The Explanatory Note to heading 3922 further states that heading 3922 covers “fittings designed to be permanently fixed in place, in houses, etc., normally by connection to the water or sewage systems. It also covers other sanitary ware of similar dimensions and uses, such as portable bidets, baby baths and camping toilets.” (emphasis added). EN 39.22 excludes, however, “Small portable sanitary articles such as bed pans and chamber pots (heading 39.24), as well as items such as soap dishes, towel rails, toilet paper holders and similar articles for bathrooms, toilets or kitchens. Heading 3922 is therefore more limited in scope than heading 7324, which does include such items as soap dishes and toilet paper holders.
“Sanitary ware” for the purposes of heading 3922, HTSUS, therefore covers permanent fixtures such as toilets and showers (as well as specific components such as lavatory seats and covers), typically connected to the building’s plumbing system and used for the removal of waste from the home.
We have further consulted the standards jointly developed by the American Society of Mechanical Engineers (ASME) and the Canadian Standards Association (CSA) regarding plumbing supply fittings (ASME A112.18.1/CSA B125.1), which can be found on the ASME website at www.asme.org. The scope of the ASME A112.18.1/CSA B125.1 standard for plumbing supply fittings can be found in Part 1, Section 1.1, which states that the standard applies to plumbing supply fittings and accessories located between the supply line stop and the terminal fitting, including, in relevant part, “(b) bath and shower supply fittings”. Part 3, entitled “Definitions and abbreviations”, at Section 3.1 Definitions, states, in relevant part: “The following definitions apply in this Standard:
Accessory—a component that can, at the discretion of the user, be readily added, removed, or replaced, and that, when removed, will not prevent the fitting from fulfilling its primary function. Note: Examples include aerators, hand-held shower assemblies, shower heads, and in-line flow controls (emphasis added). * * * Fixture—a device for receiving water, waste matter, or both and directing these substances into a sanitary drainage system
As the instant drains connect to the home’s water system in order to receive and direct wastewater into a sanitary drainage system, they are within the scope of the above definitions of sanitary ware and plumbing fixtures. They are not akin to the examples of portable sanitary articles such as bed pans, or fixtures such as toilet paper holders or soap dishes, which are excluded by EN 39.22. Such articles are easily replaceable and do not connect to a home’s plumbing system or otherwise play a direct role in removing waste from a person or the home.
The instant drains can also be distinguished from accessories of plumbing systems such as showerheads, which CBP has consistently classified outside of headings 3922 and 7324; unlike the instant drains, showerheads are easily replaceable, are not permanently installed in walls or floors, and do not receive water or waste matter and direct it to a sanitary drainage system. See e.g., HQ H092556, dated July 10, 2015; NY N246906, dated November 18, 2013; NY N033873, dated August 21, 2008; NY I81474, dated May 22, 2002; NY H80605, dated June 5, 2001; and NY G85952, dated January 17, 2001.
HOLDING:
By application of GRI 1, Oatey part nos. 42213, 422373, 42251, 42210, 42238, and 42219 are classified in heading 3922, HTSUS, specifically subheading 3922.90.00, which provides for “Baths, shower baths, sinks, washbasins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware, of plastics: Other.” The 2013 column one, general rate of duty is 6.3% ad valorem.
You are instructed to deny the protest.
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 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 the decision the Office of Regulations and Rulings will make the decision available to CBP personnel and to the public online at 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