CLA-2 OT:RR:CTF:TCM H046780 HkP
R. Kevin Williams, Esq.
Rodriguez O’Donnell Gonzales & Williams, P.C.
Attorneys and Counselors at Law
8430 West Bryn Mawr Ave., Suite 525
Chicago, IL 60631
RE: Tariff Classification of the Relaxa® Ultra Shower Head 5 and the Relaxa® Sensi Top 4 hand shower
Dear Mr. Williams:
This letter is in response to your request dated October 22, 2008, submitted on behalf of Grohe America, Inc. (“Grohe”), for a binding ruling on the tariff classification under the Harmonized Tariff Schedule of the Untied States (HTSUS) of the “Relaxa® Ultra Shower Head 5” and the “Relaxa® Sensi Top 4 hand shower.” Samples, schematic drawings, and information on the products’ components were submitted for our review.
In reaching our decision we have also taken into consideration arguments made by counsel during a teleconference with a member of my staff on February 25, 2009, as well as in a submission dated February 27, 2007.
FACTS:
The Relaxa® Sensi Top 4 hand shower is described as a handle approximately six inches long that is attached to a rounded head containing shower nozzles. The “face” portion of the shower head is made of plastic and features a ring of SpeedClean® nozzles. These nozzles are made from multi-component silicone rubber and are designed so that limescale build-up can be removed by wiping with a finger or a cloth. According to the submitted information, the hand shower incorporates Grohe’s DreamSpray® technology, which distributes the same amount of water to each nozzle using a very thin cavity. The result is “an even, all-over spray without any dry spots.” The Relaxa® Sensi Top 4 is available in a chrome finish. It will be attached to other parts of a bath plumbing system with a flexible hose, which is not at issue.
According to the submitted information, the Relaxa® Ultra Shower Head 5 offers five different spray patterns, which are selected by rotating the face of the shower head. Like the Relaxa® Sensi Top 4 hand shower, the Ultra Shower Head 5 incorporates DreamSpray® technology and SpeedClean® nozzles. It also has a chrome finish. The shower head will be attached to other parts of a bath plumbing system with the brass metal fitting at the upper end of the shower head.
You believe that the correct classification for both these products is under heading 8424, HTSUS, as parts of mechanical appliances for projecting, dispersing or spraying liquids or powders. In addition, you believe that rulings in which CBP classified shower heads and handheld showers under heading 3924, as other household articles of plastics, “are mistaken and should not be followed here.” See, e.g., Headquarters Ruling Letter (HQ) 962584, dated July 27, 1999.
ISSUES:
Is a “shower” a mechanical appliance for projecting, dispersing or spraying liquids or powders?
Are the handheld shower and the shower head parts of mechanical appliances for projecting, dispersing or spraying liquids or powders, classified under heading 8424, HTSUS, or other household articles of plastics, classified under heading 3924, HTSUS?
LAW AND ANALYSIS:
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 2 through 6 may then be applied in order.
The 2009 HTSUS provisions under consideration are as follows:
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
3924.90 Other:
3924.90.56 Other…..
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:
8424.90 Parts:
8424.90.90 Other …..
You claim that the products at issue are precisely described by heading 8424, HTSUS, because they are parts of “mechanical appliances,” as those terms have been defined by Customs and lexicographic sources. You cite definitions of the term “mechanical” provided in Webster’s Third New International Dictionary (1986), such as, “of, or relating to, or concerned with machinery or tools” and “produced or operated by a machine or tool.” In turn, you also cite definitions of the term “machine” provided in the same dictionary. They include, “an assemblage of parts that are usually solid bodies but include in some cases fluid bodies or electricity in conductors and that transmit forces, motion, and energy one to another in some predetermined manner and to some desired end (as for sewing a seam, printing a newspaper, hoisting a load, or maintaining an electric current)” and “an instrument (as a lever) designed to transmit or modify the application of power, force, or motion.” You state that CBP has defined the term “appliances” as “apparatus for a particular purpose,” an “instrument or device designed for a particular use” (HQ 964834, May 23, 2002), or as a “piece of equipment for adapting a tool or machine to a special purpose” (HQ 963807, Nov. 21, 2000).
In addition, you direct our attention to J.E. Bernard & Co., Inc. v. United States, 60 Cust. Ct. 296, Cust. Dec. 3372 (1968), in which the court interpreted the scope of Tariff Schedules of the United States (TSUS) item 662.50, which provided for, among other things, mechanical appliances for projecting or dispersing liquids. At issue in that decision was the correct classification of various types of water fountain nozzles made of brass and bronze, each of which depended on a pump to create the pressure with which the nozzle operated and which served to recirculate the water in the fountain. Id. at 299. The court found that the fountains with which the nozzles were used were mechanical appliances for projecting, dispersing, or spraying liquids within the meaning of the tariff schedules because they operated mechanically by means of pumps, motors, valves and other items. Id. at 305-06. According to the court, mechanical appliances “operate mechanically,” that is, they “change one form of motion or energy into another form” (citing the common meaning of the word “machine” relied on in The Durst Mfg. Co., Inc. v. United States, 50 CCPS 56, C.A.D. 820). Id. at 304. Based on this understanding, the court in J.E. Bernard found that the nozzles under its consideration were neither machines nor mechanical appliances for spraying liquids. Id. The court also found that the nozzles were parts of fountains because their only use was with other components to form fountains and, as such, were properly classified as parts under TSUS item 662.50.
Based on the decision in J.E. Bernard & Co., Inc. v. United States, you believe that the shower assemblies to which the shower head and hand shower at issue are attached are “mechanical appliances” of heading 8424, HTSUS, because they are an “ ‘assemblage of parts’ (shower head, hose, valves,
plumbing, etc.) in which the energy, motion or force of the stream of water moving though them is modified or transmitted into a spray for the purpose of providing a shower bath to the user …”
In the alternative, you argue in your supplemental submission that the shower heads and hand showers may be simple machines in their own right because they utilize “a sophisticated design that changes the water and water pressure supplied by the supplied by the domestic plumbing system into a different and sometimes a variety of spray patterns.”
Decisions by the courts interpreting nomenclature under the HTSUS' predecessor tariff code, the TSUS, are not deemed dispositive under the HTSUS. However, on a case-by-case basis, such decisions should be deemed instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418, Aug. 23, 1988, 102 Stat. 1107, 1147; H.R. Rep. No. 576, 100th Cong., 2d Sess. 549-550 (1988); 1988 U.S.C.C.A.N. 1547, 1582-1583. In this instance, we find instructive the discussion of the court in J.E. Bernard & Co., Inc. v. United States on mechanical appliances for projecting, dispersing or spraying liquids and their parts.
Unlike the fountains in J.E. Bernard and the goods of heading 8424, HSTUS, the “shower assemblies” to which the instant goods are connected are merely pipes behind a bathroom wall, the water in which is controlled by valves and levers contained in the fixtures on the visible side of the wall. Bathroom plumbing is not a mechanical appliance because it does not change one form of energy or motion to another. The same is true for the hand showers and shower heads, which are akin to the nozzles considered by the court in J.E. Bernard and found not to be machines or mechanical appliances for spraying liquids. Consequently, neither the shower assemblies nor the shower heads or hand showers are classifiable as mechanical appliances of heading 8424, HTSUS.
In your supplemental submission you argue that:
While a home plumbing system that is connected to a municipal water supply system does not typically include a pump within the dwelling, the system itself utilizes a variety of means to pressure the system so that each dwelling has adequate water pressure to operate the domestic plumbing system…. Thus the entire municipal water system can be considered a vast machine of which the shower heads at issue herein are a part.
You also state that many rural dwellings that are not connected to a municipal water system utilize a pump to raise water out of a well or cistern. You argue that, “[i]n both these contexts, the shower heads and hand showers could be considered a part of the mechanical appliance that forms the typical domestic plumbing system.”
The HTSUS provides for articles of commerce. Heading 8424, HTSUS, provides for, in relevant part, “mechanical appliances,” the meaning of which we have already discussed. It is clear that, in no way, could a municipal water system be defined as a mechanical appliance of heading 8424, HTSUS. A municipal water system is not an “appliance” and it is not a commercially traded good provided for in the HTSUS. Moreover, while domestic plumbing may at some point connect to a municipal water system, it is not a part of that system. Accordingly, we are not persuaded by your argument that the municipal water system is a “vast machine” of heading 8424, HTSUS.
Furthermore, the Court of Appeals for the Federal Circuit has defined a “part” as an “item dedicated solely for use with another article”. Bauherhin Technologies Limited Partnership v. United States, 110 F. 3d 774, 779 (citations omitted) (Fed. Cir. 1997). In this instance, what is commonly referred to as a bathroom “shower” is not “an article” within the commercial sense of the word. A consumer cannot purchase a “shower”; they can purchase the bathroom fixtures to attach to pipes behind a bathroom wall, the shower head, and possibly a shower stall. Because a bathroom shower is not an article, a shower head or handheld shower cannot properly be considered to be a “part” of a shower. Finally, your argument regarding well and cistern pumps creating machines out of bathroom plumbing is not persuasive because those pumps do not operate directly on bathroom plumbing but are a part of a larger plumbing system.
As you have noted, CBP has previously classified handheld showers and shower heads under heading 3924, HTSUS, as other household articles of plastics. You argue that this classification is incorrect because “the shower head and hand shower are qualitatively different than the exemplars provided in the Explanatory Notes” and that “the Explanatory Notes clearly state that toilet articles intended for permanent installation in or on walls or other parts of buildings are excluded from the scope of heading 39.24” (internal quotation marks omitted). You conclude that there is no part of heading 3924, HTSUS, that accurately describes your goods.
We disagree. The Explanatory Notes are merely indicative of the type of goods provided for in a heading but cannot narrow the scope of the heading. Heading 3924 provides for, among other things, the very broad categories of plastic household articles and plastic toilet articles. To the extent that EN 39.24 does not reflect the expansiveness of these categories, it is not an accurate reflection of the scope of the heading.
You also argue that the instant goods cannot be classified in heading 3924 because they have a metal exterior surface and are therefore not goods “of plastics.” However, we note that the metal exterior surface to which you refer is nothing more than a metal-colored (chrome) finish that gives the goods the appearance of metal products.
Based on all of the foregoing, we find that the shower heads and handheld showers at issue are classified under heading 3924, HTSUS, as other household articles and toilet articles of plastics.
HOLDING:
By application of GRI 1, the Relaxa® Ultra Shower Head 5 and the Relaxa® Sensi Top 4 hand shower are classified under heading 3924, HTSUS. They are specifically provided for in subheading 3924.90.56, HTSUS, which provides for: “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” The column one, general, rate of duty is 3.4% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch