OT:RR:CTF:CPMM H281936 APP
Michael G. Hodes, Esq.
Hodes, Keating & Pilon
134 North Lasalle Street, Suite 1300
Chicago, IL 60602
RE: Modification of NY N278687; Tariff classification of soiled dish tables and undercounter dish tables made of stainless steel
Dear Mr. Hodes:
This is in response to your letter of October 31, 2016, filed on behalf of Elkay Manufacturing Company (“requestor”), requesting reconsideration of New York Ruling Letter (“NY”) N278687, dated September 28, 2016, regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of soiled dish tables and undercounter dish tables (collectively “dish tables”) made of stainless steel.
In NY N278687, U.S. Customs and Border Protection (“CBP”) classified the subject dish tables in heading 7324, HTSUS, more specifically in
subheading 7324.10.00, HTSUS, which provides for “Sanitary ware and parts thereof, of iron or steel: Sinks and wash basins, of stainless steel,” by application of General Rule of Interpretation (“GRI”) 3(a). We have determined that the instant dish tables of stainless steel are classifiable in subheading 7324.10.00, HTSUS, by application of GRIs 1 and 6. For the reasons set forth below, we hereby modify NY N278687.
Pursuant to section 625(c)(l), Tariff Act of 1930 (19 U.S.C. § 1625(c)(l)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182,
107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 52,
Number 28, on July 11, 2018, proposing to modify NY N278687 and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
The products under consideration are used in restaurants and food preparation facilities to stage and rinse dirty dishes, and utensils, before placing them in dishwashing machines. The soiled dish tables come in six models: DDT-36-LX, DDT-48-RX, DDT-60-LX, DDT-72-RX, DDT-96-RX, and DT-30-120-1-X. The undercounter dish tables come in two models: UDT-50-LX and UDT-60-RX.
Each dish table is made of welded construction and consists of a 6-inch deep stainless steel sink bowl and counter, a stainless steel U-channel, and either an 8-inch or a 10-inch high stainless steel backsplash. In most cases, the dish tables are imported with pre-punched holes for plumbing connections. Each is supported by a set of left-side or right-side galvanized steel legs, depending on the orientation of the table. The soiled dish tables are positioned next to the dishwashing machine and attach to it at the unsupported side of the counter. The undercounter dish tables are positioned over the dishwashing machine, which sits underneath the counter. Below are pictures of the dish tables:
DDT-36-LX DDT-48-RX DDT-60-LX DDT-72-RX
UDT-50-LX UDT-60-RX DDT-96-RX
The models pictured above are demarcated as “DDT” for soiled dish tables and “UDT” for undercounter dish tables (straight design, the width of the entire product in inches, galvanized legs with adjustable plastic feet), and the letter “R” or “L” for the location of the two legs. The other side of the dish tables is attached to a dishwashing machine and the “backsplash” with tile edge is affixed to the wall by screws. The items feature raised rolled edges and the sink basins measure 20 ¼ inches each.
Once installed, a dish rack containing soiled dishes is placed onto the drain board, positioned in or over the basin, and rinsed. The dish tables are installed at an angle with a 1/8-inch rise, so that liquid and food particles will drain into the sink basin. The dish rack full of rinsed dishes is then slided into a dishwasher.
ISSUE:
Whether the dish tables are classifiable under heading 7324, HTSUS, as sanitary ware made of steel, or under heading 9403, HTSUS, as other furniture.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the 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 AUSRI 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to
GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The following HTSUS provisions are under consideration:
7324 Sanitary ware and parts thereof, of iron or steel:
7324.10.00 Sinks and wash basins, of stainless steel
. . .
9403 Other furniture and parts thereof:
9403.20.00 Other metal furniture
. . .
Your proposed classification of the dish tables is in heading 9403, HTSUS, specifically under subheading 9403.20.00, HTSUS, as other metal furniture. You assert that: (1) this classification can be made by application of GRI 1; (2) CBP cannot proceed to a GRI 3(a) analysis because there are not two prima facie classifications that apply; and (3) a classification in heading 7324, HTSUS, for purposes of GRI 3(a), is precluded as a matter of law by Section XV, Note 1(k), HTSUS. While we agree with this critique of the analysis of NY N278687, we affirm the result for the reasons below.
Pursuant to Note 1(k) to Section XV, HTSUS, Chapter 73, which is contained within Section XV, does not cover articles of Chapter 94, HTSUS. Therefore, we must first determine whether the dish tables are articles of
Chapter 94.
Note 2 to Chapter 94, HTSUS states that:
2. The articles (other than parts) referred to in headings 9401 to 9403 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:
Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture;
(b) Seats and beds.
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 73.24 states, in relevant 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.
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 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.
The heading excludes: . . . (b) Small hanging medicine and toilet wall cabinets and other furniture of Chapter 94.
The General EN to Chapter 94 defines the term “furniture” as follows:
Any “movable” articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices, churches, schools, cafés, restaurants, laboratories, hospitals, dentists’ surgeries, etc., or ships, aircraft, railway coaches, motor vehicles, caravan trailers or similar means of transport. (It should be noted that, for the purposes of this Chapter, articles are considered to be “movable” furniture even if they are designed for bolting, etc., to the floor, e.g., chairs for use on ships). Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are also included in this category.
Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture, designed to be hung, to be fixed to the wall or to stand one on the other or side by side, for holding various objects or articles (books, crockery, kitchen utensils, glassware, linen, medicaments, toilet articles, radio or television receivers, ornaments, etc.) and separately presented elements of unit furniture . . . .
Except for the goods referred to in subparagraph (B) above, the term “furniture” does not apply to articles used as furniture but designed for placing on other furniture or shelves or for hanging on walls or from the ceiling.
It therefore follows that this Chapter does not cover other wall fixtures such as coat, hat and similar racks, key racks, clothes brush hangers and newspaper racks, nor furnishings such as radiator screens.
Headings 94.01 to 94.03 cover articles of furniture of any material (wood, osier, bamboo, cane, plastics, base metals, glass, leather, stone, ceramics, etc.). Such furniture remains in these headings whether or not stuffed or covered, with worked or unworked surfaces, carved, inlaid, decoratively painted, fitted with mirrors or other glass fitments, or on castors, etc.
The instant merchandise is composed of a sink with drain board welded together seamlessly. After importation, each article is assembled with its legs, affixed to the dishwasher at an angle, and caulked at the seam of the wall. Even though each dish table is placed on the floor of a food service facility, once properly installed, it is not moveable. It is supported by the wall, a dishwasher, and the two legs, adjusted to assure proper drainage.
While placement on the floor or ground is necessary to the determination of classification as furniture (except for certain wall-hung items listed in Note 2 to Chapter 94, HTSUS), it is not sufficient. Many kitchen articles placed on the floor or ground (e.g., refrigerators, stoves, dishwashers, and sinks) are not furniture. In addition, the instant merchandise is not a cupboard, a bookshelf, a single shelf presented with supports, a seat, or a bed. Neither is it unit furniture because the subject dish tables are not composed of smaller complementary items designed to be assembled together in various ways according to the consumer’s individual needs to hold various objects or articles. See Storewall, LLC v. United States, 644 F.3d 1358, 1361 (Fed. Cir. 2011).
The dish tables resemble sinks with drain boards because dirty dishes are rinsed in the sink. Requestor’s website pictures sinks with drain boards similar to the instant dish tables in the section titled “sinks.” These items are used to clean dishes and then stack the clean dishes to dry. The drain board is the area used to temporarily place the dishes until they dry. That the additional space with drainage here is used to stack dirty dishes in preparation for their being rinsed in the sink and then loaded into a dishwasher, rather than to allow clean dishes to dry, is irrelevant.
Neither item is like the examples of furniture covered by heading 9403, HTSUS. Neither style of sink is designed to contain or store other articles. As we already noted above, the soiled dish tables are not “movable” articles covered by Chapter 94, HTSUS, because they are attached to the dishwasher and affixed to the wall. EN 94.03(c) clarifies that heading 9403 does not include furniture for “[b]uilders’ fittings (e.g., frames, doors and shelves) for cupboards, etc. to be built into walls.” The subject dish tables have a backsplash and are made to be attached to the wall and the adjacent dishwasher. They are constructed at an angle to drain liquids and debris into the sink. Thus, the instant dish tables are not furniture within the meaning of Chapter 94, HTSUS.
By application of GRI 1, the dish tables are prima facie classifiable as “sanitary ware” in heading 7324, HTSUS. Heading 7324, HTSUS, provides for steel sanitary ware and parts of sanitary ware, of iron or steel. Heading 7324 includes most sinks used for personal hygiene, as well as mop sinks, kitchen sinks, and laundry sinks, regardless of the type of cleansing for which they are associated.
The term “sanitary” is not defined in the HTSUS and the ENs. When terms are not defined in the HTSUS or the ENs, they are construed in accordance with their common and commercial meaning. See Nippon Kogaku (USA), Inc. v. United States, 69 C.C.P.A. 89, 673 F. 2d 380 (1982); C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F. 2d 1268 (1982). According to Dictionary.com, the term “sanitary ware” covers “plumbing fixtures, as sinks or toilet bowls, made of ceramic material or enameled metal.” The Macmillan Dictionary defines “sanitary” as “relating to people’s health, especially to the system of supply water and dealing with human waste.” The Oxford Dictionary, defines “sanitary” as “[r]elating to the conditions that affect hygiene and health, especially the supply of sewage facilities and clean drinking water” and as “hygienic and clean.”
In addition, the CBP Informed Compliance Publication entitled, What Every Member of the Trade Community Should Know About: Household Articles of Base Metal 9, Part (d) (Mar. 2007) states, “Sanitary ware includes certain fixtures used to cleanse the body, such as sinks and baths and certain vessels used for the removal of waste, such as bedpans. It includes other items used exclusively in the bathroom, such as toilet paper holders and soap dishes. It does not include items provided for elsewhere, such as faucets.” The instant dish tables are sinks with drain board, backsplash, and legs. The drain board is an extension of the sink. This molded piece of metal has a sanitary function because it is used for placement of dirty dishes for washing, for rinsing and partially cleaning dirty dishes in preparation for disinfection and sterilization in a dishwasher, and for placing the rinsed dishes on their way to the dishwasher.
In NY N243764, dated July 15, 2013, CBP classified stainless steel sinks, including standard sinks, hand sinks, bar sinks, ice sinks, and mop sinks as “sanitary ware” in heading 7324, HTSUS. The bowl of each sink was welded to the drain board, backsplash, and legs to form the finished product. In
NY N237840, dated Feb. 8, 2013, CBP classified stainless steel sinks with fabricated bowls in heading 7324, HTSUS. Just like the sinks in NY N243764, the instant dish tables are sinks welded to a drain board with backsplash and legs. Similarly to the sinks in NY N237840, the instant sinks with drain board have sanitary functions. A dish rack containing soiled dishes is placed onto the drain board and then positioned in or over the basin and rinsed. Liquid and food particles drain into the sink basin. Only rinsed dishes are placed into the dishwasher.
Accordingly, the subject dish tables are “sanitary ware” and are classifiable under heading 7324, HTSUS.
Please be advised that the subject merchandise may be subject to antidumping duties (“AD”) or countervailing duties (“CVD”). We note that the U.S. International Trade Administration is not necessarily bound by a country of origin or classification determination issued by CBP, with regard to the scope of AD/CVD orders. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by CBP. The Import Administration can be contacted at http://www.trade.gov/ia/ (see Contact Information). A list of current AD/CVD cases at the U.S. International Trade Commission can be viewed on its website at http://www.usitc.gov (click on “Import Injury” and then “Antidumping and Countervailing Duty Investigations”). AD/CVD deposit and liquidation messages can be searched using ACE, the system of record for AD/CVD messages, or the AD/CVD Search tool, at http://adcvd.cbp.dhs.gov/ adcvdweb/.
In addition, effective July 6, 2018, the Office of the United States Trade Representative (“USTR”) imposed an additional tariff on certain products of China classified in the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(b), HTSUS. The USTR imposed additional tariffs, effective August 23, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(d), HTSUS. Subsequently, the USTR imposed further tariffs, effective September 24, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(f) and U.S. Note 20(g), HTSUS. For additional information, please see the relevant Federal Register notices dated June 20, 2018 (83 F.R. 28710), August 16, 2018 (83 F.R. 40823), and September 21, 2018 (83 F.R. 47974). Products of China that are provided for in subheading 9903.88.01, 9903.88.02, 9903.88.03, or 9903.88.04 and classified in one of the subheadings enumerated in U.S. Note 20(b), U.S. Note 20(d), U.S. Note 20(f) or U.S. Note 20(g) to subchapter III shall continue to be subject to antidumping, countervailing, or other duties, fees and charges that apply to such products, as well as to those imposed by the aforementioned Chapter 99 subheadings.
Products of China classified under subheading 9903.88.03, HTSUS, unless specifically excluded, are currently subject to the additional 10 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 7324.10.00, HTSUS, listed above.
The tariff is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Notice cited above and the applicable Chapter 99 subheading.
HOLDING:
By application of GRIs 1 and 6, the subject soiled dish tables and undercounter dish tables are classified under heading 7324, HTSUS, specifically under subheading 7324.10.00, HTSUS, which provides for “Sanitary ware and parts thereof, of iron or steel: Sinks and wash basins, of stainless steel.” The 2018 column one, general rate of duty is 3.4% ad valorem.
Products of China classified under subheading 9903.88.03, HTSUS, unless specifically excluded, are currently subject to the additional 10 percent ad valorem rate of duty. The merchandise may also be subject to AD/CVD.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N278687, dated September 28, 2016, is hereby MODIFIED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division