CLA-2 OT:RR:CTF:TCM H118677 EG
Jane L. Taeger
Samuel Shapiro & Company, Inc.
One Charles Center
100 North Charles Street, Suite 1200
Baltimore, MD 21201
RE: Classification of Smoke and Fire Safety Curtain Systems
Dear Ms. Taeger:
This is in response to your request of February 1, 2010, on behalf of U.S. Smoke & Fire Curtain, LLC, for a binding ruling on the tariff classification of smoke and fire safety curtain systems (safety curtain systems) from Great Britain under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise is safety curtain systems with the following model numbers: SD60 Gravity Fail Safe Smoke Curtain System, FC240 Gravity Fail Safe Fire Curtain System, FC240 S, FC60 and FC60 S. These safety curtain systems help to contain smoke and fire and allow people to escape while protecting the building and its contents. The curtains are stored on rollers in a steel headbox which can be recessed into the ceiling. When recessed, they appear simply as a slit in the walls and ceiling. The smoke and fire curtains differ as the smoke curtains do not have side guides which are steel tracks installed on the sides of the wall that guide the curtain as it descends into place.
The safety curtain systems integrate with the building’s fire alarm system. If the fire alarm is activated, the safety curtain system’s electronic control panel sends a signal which releases the curtains from the steel headboxes. The curtains descend under the power of gravity using the weight of a steel bottom bar to rotate the curtain rollers and stop in the lower position when all the fabric is unwound from the rollers. The speed of the descent is controlled by the safety curtain system’s mechanical portion.
Depending upon customer specifications, the actual curtains can be up to 90 feet wide and have a 40 foot drop. Samples of the material used for the curtains were submitted to the U.S. Customs and Border Protection (CBP) laboratory for analysis. According to CBP Laboratory Report No. NY 20100250, dated April 8, 2010, the material consists of woven glass fibers reinforced with stainless steel mesh and coated with a polymer resin containing other metals. The curtain material can withstand a temperature of up to 900 degrees Celsius.
ISSUE:
Whether the subject curtain safety system is classified by its curtain component under heading 7019, HTSUS, or by its mechanical component under heading 8428, HTSUS, as “lifting machinery” or under heading 8479, HTSUS, as “other machinery”?
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 HTSUS provisions under consideration are as follows:
7019 Glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabrics):
7019.90 Other:
7019.90.10 Woven.
* * *
8428 Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics):
8428.90.01 Other machinery.
* * *
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other:
Electromechanical appliances with self-contained electric motor:
8479.89.65 Other.
* * *
Note 1(c) to Chapter 84 states that Chapter 84 does not cover:
Laboratory glassware (heading 7017); machinery, appliances or other articles for technical uses or parts thereof, of glass (heading 7019 or 7020).
* * *
The safety curtain systems at issue are composed of two or more materials which are prima facie classifiable in different headings, i.e., the system’s mechanical portion (heading 8428 or 8479) and the glass fiber curtains (heading 7019). As no single heading describes the merchandise in its entirety, it is classified applying GRI 3(b), as if consisting of the material which gives the good its essential character.
GRI 3(b) provides, in pertinent part:
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:
…
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.
The Explanatory Notes to GRI 3(b) state, in relevant part:
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.
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.
As stated by the Court of International Trade in Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (2005), “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.” See also Conair Corporation v. United States, 29 Ct. Int’l Trade 888, 895 (2005) (discussing "the concept of ‘essential character’ found in GRI 3(b)”). The factors that determine an article’s essential character “vary between different kinds of goods.” See EN (XII) to GRI 3. Examples of such factors include the bulk, quantity, and weight of a material, as well as the role of the material in relation to the use of the product. See 3G Mermet Fabric Corp. v. United States, 135 F. Supp. 2d 151, 159 (Ct. Int’l Trade 2001).
The sole function of the safety curtain system is to contain smoke and fire. The glass fiber curtains are the portion of the composite good which carry out this function. The glass fiber curtains can have dimensions of up to 90 feet wide and 40 feet long. They can withstand temperatures of up to 900 degrees Celsius. Consumers purchase the safety curtain system because of the containment properties of the curtains. The lifting and lowering of the curtains is ancillary to the smoke and fire containment which the glass fiber curtains provide. For all of the aforementioned reasons, the glass fiber curtains provide the essential character of the safety curtain systems. As such, the safety curtain system is classified under heading 7019, HTSUS, as an article comprised of woven glass fibers. (See Headquarters Ruling Letter (HQ) 955432, dated August 4, 1994, where a motorized screen system was classified by the screen’s textile material rather than by its machinery; but see New York Ruling Letter (NY) B84456, dated May 7, 1997, where motorized Venetian blinds were classified by their machinery and not by the material of the blinds).
In addition to the GRI 3(b) essential character analysis, Note 1(c) to Chapter 84 states that Chapter 84 excludes “machinery, appliances or other articles for technical uses or parts thereof, of glass (heading 7019 or 7020).” Therefore, if the safety curtain system’s glass curtain is an article of glass designed for technical uses, then the safety curtain system is excluded from classification in Chapter 84.
The HTSUS does not define the term “technical uses” as it pertains to articles of glass. In HQ 964556, dated March 12, 2001, CBP defined “technical uses” as it pertains to ceramics of heading 6909, HTSUS, by stating that:
“Technical” is defined as follows by Webster’s Third New International Dictionary (1986): “1 a: having special usu. practical knowledge esp. of a mechanical or scientific subject ... b: marked by or characteristic of specialization.” “Technical” is defined by the Random House Unabridged Dictionary (1993) as follows: “1. Belonging or pertaining to an art, science, or the like: technical skill. 2. Peculiar to or characteristic of a particular art, science, profession, trade, etc.: technical details.”
Thus, an article designed for technical uses is an article designed for a specialized use, typically in an artistic, scientific, mechanical, trade or professional application. In HQ 964556, CBP found that ceramic substrates designed for use in electronics equipment were classifiable as ceramics for technical uses under heading 6909, HTSUS. With regard to glass, CBP has found that glass light bulbs designed to explode and trigger fire alarm sprinkler systems were glass articles with technical uses under heading 7020, HTSUS. See NY J81652, dated March 12, 2003. CBP has also found that certain glass filters are classifiable as glass articles designed for technical uses in Chapter 70. See NY 851546, dated April 27, 1990 (solid glass filter classifiable under heading 7020, HTSUS) and NY E85995, dated October 21, 1999 (woven glass fiber filter classifiable under heading 7019, HTSUS).
The safety curtain system’s glass curtain is an article of glass specifically designed for fire and smoke containment. The woven glass fibers are specifically designed to withstand high temperatures and are custom-fitted to contain specific areas. Like the exploding glass bulbs that trigger a fire alarm in NY J81652, the safety system curtains are glass articles designed for technical uses. As such, the safety curtain systems are excluded from classification in Chapter 84 by Note 1(c) to Chapter 84.
The requester cites to NY C84875, dated March 11, 1998, which classified a manual fire shutter operator (operator) under heading 8428, HTSUS, as lifting or handling machinery. The operator’s manufacturers designed the operator to be mounted to a door frame. The operator consisted of a wheel and hand chain to manually raise and lower the steel fire shutter, internal gearing and a spring loaded release arm. However, this ruling only classified the operator and not the steel fire shutter. The fire shutter and operator are imported and sold separately. The subject safety curtain system involves the raising and lowering machinery as well as the glass fiber curtain. As such, NY C84875 is distinguishable from the current case.
The requester also suggests classification under heading 8479, HTSUS, as an electro-mechanical device with a self-contained electric motor. As stated above, the safety curtain system’s mechanical portion cannot be considered without also contemplating the glass fiber curtain. Under Note 1(c) to Chapter 84 and the GRI 3(b) essential character analysis, the safety curtain system is precluded from classification under Chapter 84.
HOLDING:
By application of GRI 3(b) and Note 1(c) to Chapter 84, the safety curtain system is classified under heading 7019, HTSUS, specifically in subheading 7019.90.10, HTSUS, as “Glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabrics): other: woven.” The 2010 column one, general rate of duty is: 4.8% 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 World Wide Web at http://www.usitc.gov/tata/hts/.
Sixty days from the date of the decision 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.
A copy of this ruling letter should be attached to the 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,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch