CLA-2-RR:CR:GC 966993 RSD
TARIFF NO: 6810.99.00
Port Director
U.S. Customs and Border Protection
11099 South La Cienega Blvd. Los Angeles, California 90045
RE: Protest 2704-03-102177; Fire Resistant Safes
Dear Port Director:
This is in reference to protest 2704-03-102177, filed on behalf of Meijer Distribution, Inc., against your classification of two models of fire resistant safes under the Harmonized Tariff Schedule of the United States (HTSUS). The entries under protest were liquidated on June 6, 2003, and this protest was timely filed on September 4, 2003. We requested and received a sample of one of the fire safe models.
FACTS:
The subject products under protest are two models of fire resistant safes that are used to store and protect articles from a fire. Model 5012 measures approximately 13 inches by 11 inches by 6 inches and it has a storage capacity of .16 cubic feet. Model 5015 measures approximately 16 inches by 13 inches by 6 inches, and it has a storage capacity of .23 cubic feet. Both models have a plastic outer casing with concrete inner fillings. The concrete filler contributes a declared 70% to 80% of the weight of the articles. The fire safes also include a steel latch and key lock for additional security. According to the sales literature, the safe “protects paper to 1550 degrees Fahrenheit during a fire for 30 minutes.” No information was submitted regarding the type of plastic and its heat resistance properties used in the outer casing of the fire safe. The sample submitted, Model 5012, weighs approximately 17 pounds. Both models incorporate a carrying handle, which indicates that they are portable, but because of their weight, it appears that the fire safes are not designed for carrying and transporting articles. Your office classified the fire safes in subheading 3926.90.9880, HTSUS.
ISSUE:
What is the proper classification under the HTSUS for the fire resistant safes?
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 may then be applied.
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, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.98 Other.
* * * * * * * * * * * *
6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced:
Other articles:
6810.99.00 Other.
* * * * * * * * * * * *
8303.00.00 Armored or reinforced safes, strong-boxes and doors and safe deposit
lockers for strong-rooms, cash or deed boxes and the like, and parts thereof, of base metal.
* * * * * * * * * * * *
9403 Other furniture and parts thereof:
9403.70 Furniture of plastics:
9403.70.40 Of reinforced or laminated plastics.
* * * * * * * * * * * *
EN 39.26 states that “This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other material of heading 39.01 to 39.14.” Among the items that are covered in Heading 3926 are “Plastic containers filled with carboxmethylcellulose (used as ice-bags) tool boxes or cases, not specially shaped or internally fitted to contain particular tools with or without their accessories”, and “Various other article such as fasteners for handbags, corners for suit cases…”
EN 83.03 indicates that the heading covers containers and safe deposit lockers for strong-rooms designed for securing valuables, jewels, documents, etc. against theft and fire. It is stated that:
Safes and strong-boxes of this heading are steel containers of which the walls are armoured (i.e., made of high-strength alloy steel) or of sheet steel reinforced with, for example, reinforced concrete. They are used in banks, offices, hotels, etc. They are fitted with very secure locks and often with air-tight doors and double walls, the intervening space usually being filled with heat resistant materials. The heading includes strong-room doors (whether or not with door frames) and safe deposit lockers for strong-rooms as used in banks, safe deposits, factories, etc., where larger storage space is required.
…
The heading does not cover containers specially designed to resist fire, impact and crushing and whose walls in particular do not offer any serious resistance to attempts at breaking them open by drilling or cutting (heading 9403).
In this instance, the product is marketed and sold as a fire safe designed to protect items from a fire. Although the box has a lock, we believe that it could be easily broken open by drilling or cutting. Therefore, based on the language of EN 83.03, the fire safes under consideration are precluded from being classified in heading 8303, HTSUS.
With respect to classification under heading 9403, HTSUS, Chapter 94 Note 2 indicates that:
The articles (other than parts) referred to in headings 94.01 to 94.03 are to be classified in those headings only if they are designed for placing on the floor or ground.
The following are, however, to be classified in the above-mentioned headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other:
(a) Cupboards, bookcases, other shelved furniture and unit furniture;
(b) Seats and beds.
The fire safes under consideration do not seem to be designed for placing on the ground or on a floor. We note that the fire safes do not have a means to be anchored on a floor. Instead, they are portable and can be moved fairly easily. While the fire safes can be put on a floor, it is equally likely that they will be kept on a shelf in a closet or a bookcase. When contents are to be added or removed `from the fire safes, we believe that typically they would be placed on a table, desk or other surface above the ground. Therefore, the fire safes cannot be classified in heading 9403, HTSUS, as furniture.
Because classification in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's. GRI 2(a) is not applicable here because the merchandise is not incomplete or unfinished. GRI 2(b) states that if a product is a mixture or combination of materials or substances that are, prima facie, classifiable in two or more headings, then GRI 3 applies.
GRI 3 states:
When, by application of rule 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 or to part only of the items in a set put up for retail sale, 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, and goods put up in sets for retail sale, 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.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
The fire safes under consideration are composite goods consisting of a plastic outer casing, a concrete lining and a metal lock. The plastic and the concrete components of the fire safes fall under separate headings in the tariff schedule which describe only a portion of the goods. Therefore, the headings are to be regarded as equally specific under GRI 3(a). Because GRI 3(a) fails in establishing classification, GRI 3(b) becomes applicable. GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character.
ENs for GRI 3(b), states as follows:
(VI) This second method relates only to:
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3(a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) The 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 a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
In other words, composite goods are classifiable as if they consisted of the component, which gives them their essential character. In general, essential character has been construed to mean the attribute, which strongly marks or serves to distinguish what an article is, that which is indispensable to the structure, core, or condition of the article. See HQ 956538 dated November 29, 1994.
There have been several Court decisions on "essential character" for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. CBP had classified the sets on the basis of the textile curtain under the "default rule of GRI 3(c)", after determining that neither the relative specificity test nor the essential character test was applicable (119 F.3d at 971). The CIT found that the plastic liner performed the indispensable function of keeping water inside the shower and therefore held that the plastic liner imparted the essential character to the set. In its decision affirming the CIT decision, the CAFC stated:
The [CIT] carefully considered all of the facts, and, after a reasoned balancing of all the facts, concluded that Better Home Plastics offered sufficient evidence and argument to overcome the presumption of correctness. The court concluded that the indispensable function of keeping water inside the shower along with the protective, privacy and decorative functions of the plastic liner, and the relatively low cost of the sets all combined to support the decision that the plastic liner provided the essential character of the sets. ... The court’s decision did not rely solely, or even hinge, on the indispensability of the water retaining function. The decision was substantially based on the importance of the other functions as well as the cost of the entire set. [119 F.3d at 971].
Other decisions in which the Court looked primarily to the role of the constituent material in relation to the use of the goods to determine essential character include Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995).
In HQ 957182, dated March 6, 1995, based upon GRI 3(b), CBP made an “essential character” analysis of each component of the microwavable articles and determined that the articles took their essential character and classification from the energy pack. In considering the roles of the textile pouch and the energy packs, CBP noted that the primary purpose of the microwavable article is to provide warmth (i.e., that is the “indispensable function,” (Better Home Plastics, supra) of the article). The article is not intended as a means or mechanism for the transport of goods within the textile pouch; the sole purpose of the pouch is to house the energy pack. By contrast, as the energy pack is both receptacle and conduit of energy from the microwave oven, it is necessary for providing warmth. Thus, the textile pouch performs a secondary role to that of the energy pack.
Following the CIT’s analysis in Better Home Products, in determining which material imparts the essential character of the article under consideration, we must consider the purpose of the fire safe and see how the different materials that make up the fire safe contribute to that function. First, we note that the metal lock plays a relatively minor role in the intended function of the fire safes and thus we can conclude that it does not impart the essential character to the fire safes. As such we must decide whether plastic outer shell or the concrete lining imparts the essential character.
The web site www.Busseslockservice.com/safes.htm explains the purposes of fire safes. The web site points out that fire safes are designed to protect documents or collectibles in case of fire. A safe that is made for this purpose typically offers little or no protection from burglary. Certainly, a locked box of any sort helps deter pilferage, but most fire safes are not designed to withstand physical attack. Often, the walls and door consist almost entirely of insulating material with no metal reinforcement; an ordinary battery-powered drill or other basic tools can break into the safe in seconds. Also, most fire safes are not designed to be anchored in place. Fire safes are rated according to length of time that the inside temperature remains below the specified threshold while the outside temperature is kept at the test temperature. Typical fire safes are designed to protect paper. Most plastics melt at much lower temperatures, and the temperature at which paper chars is around 400 degrees.
In this instance, the article under consideration is a fire safe, which means that it is designed to protect items from damage caused by a fire. The plastic outer casing may be responsible for the outter aesthetic appearance of the article, and it may determine the shape and volume of the product, but it does not perform the most important function for which the product is designed that of protecting items from a fire. Although we recognize that some plastics may have fire resistant properties, we do not have any information if the plastic used in the fire safe under consideration is fire protective. More significantly we know that the concrete is used to line the fire safe so that the safe can withstand the heat of a fire. Thus, clearly the concrete is the key material in the fire safe that protects the safe’s contents from a fire. Therefore, following the CIT’s analysis in the Better Home Plastics case, we conclude that it is the concrete which is the constituent material that performs the indispensable function of the fire safe for which the fire safe is designed (i.e. fire protection). Thus the concrete material provides the essential character of the fire safe. Consequently, we find that the fire safe under consideration is classified in subheading 6810.99.00, HTSUS, as other articles of concrete.
HOLDING:
The fire safes under consideration are classified in subheading 6810.99.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) as: Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other, Articles: Other at the general, column one, rate which is free. Duty rates are provided for the Protestant’s 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.
Since reclassification of the merchandise as indicate above will result in the same rate of duty as claimed, you are instructed to ALLOW the protest in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 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 Rulings Division