Application for Further Review of Protest No. 3901-12-101134; Classification of basin/sink grids

HQ H242666 September 30, 2015 CLA-2 OT:RR:CTF:TCM H242666 GA CATEGORY: Classification TARIFF NO.: 7323.93.0060 Port Director Service Port – Chicago U.S. Customs and Border Protection 5600 Pearl Street Rosemont, IL 60018 Attn: Import Specialist Wilfredo Laurel RE: Application for Further Review of Protest No. 3901-12-101134; Classification of basin/sink grids Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 3901-12-101134, timely filed on October 4, 2012, by MSR Customs Corporation on behalf of Ferguson Enterprises, Inc. (“Ferguson”). The AFR concerns the classification of basin/sink grids under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The merchandise is identified as a basin/sink grid, ProFlo© item/part number PFG1613. The article is described as a rectangular grid with rounded corners that is made of chrome-plated stainless steel. The grid is manufactured in China. The subject ProFlo© has feet with protective bumpers and is placed at the bottom of a kitchen sink. According to the product literature provided by the Protestant, the grid protects the sink as it is being used to dry pots and dishes. Per the drawing of the sink grid from the importer’s catalog, the average size of the grid format is about two square inches, which is large enough for knives, forks, and other utensils to pass through to the bottom surface of the sink. The grid functions as a sink protector and/or as a dish drying rack. The ProFlo© item PFG1613 is designed for household use, specifically in the kitchen. The subject merchandise was entered under subheading 7324.90.0000, HTSUSA, which provides for “Sanitary ware and parts thereof, of iron or steel: Other, including parts” on November 10, 2011 and liquidated under the subheading 7323.93.0080, which provides for “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel: Other: Of stainless steel: Other” on September 21, 2012. Protestant filed its protest on October 4, 2012, claiming that the correct classification for the Spacer Sleeve is under heading 7324, HTSUS. ISSUE: Whether the basin/sink grid is classified under heading 7324, HTSUS, as sanitary ware or parts of sanitary ware, or under heading 7323, HTSUS, as a table, kitchen or other household article. 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 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. 3901-12-101134 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or the by the Customs courts. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (AUSRI). The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The 2011 HTSUS headings under consideration are the following: 7323 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel: * * * * * 7324 Sanitary ware and parts thereof, of iron or steel: * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. 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. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). EN 73.23 (A) states, in relevant part, as follows: This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes; it includes the same goods for use in hotels, restaurants, boardinghouses, hospitals, canteens, barracks, etc. As stated in in EN 73.23 (A): This group includes: (1)   Articles for kitchen use such as saucepans, steamers, pressure cookers, preserving pans, stew pans, casseroles, fish kettles; basins; frying pans, roasting or baking dishes and plates; gridirons, ovens not designed to incorporate heating elements; kettles; colanders; frying baskets; jelly or pastry moulds; water jugs; domestic milk cans; kitchen storage tins and canisters (bread bins, tea caddies, sugar tins, etc.); salad washers; kitchen type capacity measures; plate racks, funnels. EN 73.24 states, in pertinent part: 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. EN 73.24 lists numerous articles that are included under this heading: 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, chamberpots, water closet pans and flushing cisterns whether or not equipped with their mechanisms, spittoons, toilet paper holders. * * * * * Protestant argues that the merchandise is described either as “other” sanitary ware or as a part of sanitary ware of subheading 7324.90, HTSUS. Heading 7324, HTSUS, provides for steel sanitary ware and parts of sanitary ware.  The term “sanitary ware” is not defined in the HTSUS.[1]  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.”  Merriam-Webster’s Collegiate Dictionary, 1033 (10th Ed. 2001), defines sanitary ware as “ceramic plumbing fixtures (as sinks, lavatories or toilet bowls).”  These definitions are consistent with EN 73.24, which states, inter alia, that “baths, bidets ... sinks, wash basins … soap dishes and sponge baskets …urinals, bedpans, chamberpots, water closet pans and flushing cisterns … spittoons, toilet paper holders” are all sanitary ware.                   Based on the product specifications and the description provided by Protestant, the subject basin/sink grid is not sanitary ware of heading 7324, HTSUS.  It is a stainless steel sink grid designed for use in a kitchen sink to protect the sink from surface scratches and to dry dishes.  The sink, however, is a type of sanitary ware.  Because the sink grid is used in a kitchen sink, we next consider whether the product is a “part” of sanitary ware under heading 7324, HTSUS.  The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (Bauerhin), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (Willoughby), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324).  The second, set forth in United States v. Pompeo (Pompeo), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13).  Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.     More recently, the Court of International Trade (CIT) applied the Willoughby and Pompeo tests when it addressed the issue of whether two vase-shaped glass structures were classifiable as glassware in heading 7013, HTSUS, or as parts of lamps in heading 9405, HTSUS. Pomeroy Collection, Ltd., v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int’l Trade 2011).  In applying Willoughby to the first article, the CIT ruled that “[w]hen imported, the claimed article is dedicated solely for use in such article, and, when applied to that use, the claimed part meets the Willoughby test.” Ibid, at 1261-1262.  In Pomeroy, the court found that first article satisfied the Willoughby test because the hurricane lamp “clearly could not function without the first article in question” since the lamp relied upon the glass structure to hang upon. Id. at 1262.  The court found that the second glass structure satisfied Pompeo because the evidence showed that the glass structure contained the flame and enabled the candles to remain lit and to prevent open flames. Thus, the court also found that the second article at issue also satisfied the Willoughby precedent, because “when applied to that use,” the lamp could not function without the glass structures. Id.  In other words, to satisfy the Pompeo test, two prongs must be satisfied: (1) the article must be solely dedicated for use with the product it claimed to be a part of and, (2) when applied to that use, the article cannot function without the article at issue.  Applying the case law, the sink grid is not a part under the HTSUS. It is not integral to the sink and does not contribute to the function of the sink. With or without the grid, the sink can still be used for washing dishes. The website www.proflo.com also confirms that the sink grid is a separate and distinct commercial entity. Consequently, the sink grid is neither sanitary ware nor a part of sanitary ware under heading 7324, HTSUS. Heading 7323, HTSUS, provides for table, kitchen or household articles and parts there, of iron or steel. Explanatory Notes (ENs) to heading 7323, HTSUS, state, in relevant parts as follows: This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes; it includes the same goods for use in hotels, restaurants, boardinghouses, hospitals, canteens, barracks, etc.   These articles may be cast, or of iron or steel sheet, plate, hoop, strip, wire, wire grill, wire cloth, etc., and may be manufactured by any process (moulding, forging, punching, stamping, etc.). They may be fitted with lids, handles or other parts or accessories of other materials provided that they retain the character of iron or steel articles. The group includes:   (1)   Articles for kitchen use such as saucepans, steamers, pressure cookers, preserving pans, stew pans, casseroles, fish kettles; basins; frying pans, roasting or baking dishes and plates; gridirons, ovens not designed to incorporate heating elements; kettles; colanders; frying baskets; jelly or pastry moulds; water jugs; domestic milk cans; kitchen storage tins and canisters (bread bins, tea caddies, sugar tins, etc.); salad washers; kitchen type capacity measures; plate racks, funnels. The sink grid is an article of stainless steel for kitchen use that is not more specifically provided for in any other heading of the HTSUS. It is classified in heading 7323, HTSUS. This finding is consistent with prior CBP rulings. In NY N019456, dated November 14, 2007, CBP classified a kitchen sink rack made of stainless steel wire in subheading 7323.93.0060, HTSUSA. Additionally, in NY K82889, dated February 19, 2004, CBP classified a plastic-coated, steel wire drying rack for dishes and mugs in subheading 7323.99.9060, HTSUSA. In NY G81766, dated September 11, 2000, CBP classified a white sink rack made of epoxy-coated steel wire in subheading 7323.93.0060, HTSUSA. See also. NY N021024, dated December 20, 2007 (stainless steel basket designed to be placed inside sink). Consequently, we find that the ProFlo© item PFG1613 is properly classified in heading 7323, HTSUS. HOLDING: By application of GRIs 1 and 6, the ProFlo© item PFG1613 is classified in heading 7323, HTSUS, and specifically, in subheading 7323.93.0060, HTSUSA, which provides for “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel: Other: Of Stainless steel: Cooking and kitchen ware: Other: Kitchen ware.” The column one, general rate of duty is 2 percent 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 the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web 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