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HQ 963015




May 3, 2000

CLA-2 RR:CR:GC 963015 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 8481.80.30

Port Director
U.S. Customs Service
40 South Gay Street
Baltimore, MD 21202

RE: Protest 1303-99-100159; cast iron fireplace damper.

Dear Port Director:

The following is our decision regarding protest 1303-99-100159, against your classification of cast iron fireplace dampers under the Harmonized Tariff Schedule of the United States (HTSUS). Photocopies and schematic drawings were provided for our examination. In making this determination, consideration was given to arguments made by counsel for the protestant at our meeting held at Customs Headquarters on March 22, 2000, as well as the supplemental submission dated April 18, 2000.

FACTS:

Counsel for the protestant describes the articles as follows:

The articles at issue are “cast iron fireplace dampers” produced in Brazil. These dampers are designed to be built into masonry domestic fireplace chimneys and to aid in the venting of soot and exhaust from the fireplace. The damper acts as a door between the fireplace and the outdoors through the chimney.

Literature submitted with the protest depicts and describes the articles as the “Series CS Cast Damper” with poker control and heavy gauge steel valve plate. The steel valve is flanged to eliminate distortion and ensure close fit to the damper throat when closed. The same literature depicts the “Series CCC Cast Damper” with cast valve plate and chain control, as well as the “Series CC Cast Damper” with cast valve plate and poker control (which can be equipped with rotary control).

In a submission made by the manufacturing company dated October 22, 1998, the following assertions and descriptions concerning the manufacture and use of the articles were made:

1. The dampers at issue have been used for years “for increasing or decreasing air flow and venting up the chimney.”

2. [The articles] are made of cast iron with a lid that works either mechanically or by movement of a ratchet type handle.

3. The [articles are] supplied as a finished item with no additional work needed, except an occasional cleaning or grinding to eliminate problems of fit or operation of the lid.

The articles were entered on June 25, 1998, and the entries were liquidated on May 7, 1999, with classification in subheading 8481.80.30, HTSUS, as taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like . . . other hand operated appliance of iron or steel. This protest was filed on June 18, 1999.

ISSUE:

Whether the cast fireplace dampers are classifiable under subheading 7325.10.00, HTSUS, as other cast articles of iron or steel, of nonmalleable cast iron, other; or subheading 8481.80.30, HTSUS, as taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like . . . other hand operated appliances of iron or steel?

LAW AND ANALYSIS:

Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 1514 U.S.C. 1514 (a)(2) and (5)).

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The 1998 HTSUS headings and subheadings under consideration are as follows:

7325 Other cast articles of iron or steel:

7325.10.00 Of nonmalleable cast iron.

8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof:
8481.80 Other appliances:

8481.80.30 Of iron or steel.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Insofar as the applicability of subheading 7325.10.00, HTSUS, is concerned, we note that, because of the word “other” in the heading and because of the wording “not specified or included” in the relevant EN (EN 7325: “this Chapter covers . . . in headings 73.25 and 73.26 a group of articles not specified or included in Chapter 82 or 83 and not falling in other Chapters of the Nomenclature, of iron (including cast iron as defined in Note 1 to this Chapter) or steel” [emphasis added]), this subheading is a socalled “basket” provision. In such provisions, classification “is appropriate only when there is no tariff category that covers the merchandise more specifically” (Apex Universal, Inc., v. United States, CIT Slip Op. 9869 (May 21, 1988)).

The articles in question are cast iron fireplace dampers that will be built into fireplaces after importation. Note 1 to Section XV, which includes Chapter 73 and provides for base metals and articles of base metal, provides, in pertinent part, that:

1. This section does not cover:
(f) Articles of section XVI (machinery, mechanical appliances and electrical goods)[.]

The ENs to heading 7325 provide, in pertinent part, that:

This heading does not cover castings which are products falling in other headings of the Nomenclature (e.g., recognisable parts of machinery or mechanical appliances) or unfinished castings which require further working but have the essential character of such finished products.

The general notes to Section XVI, which includes chapter 84, which provide for, inter alia, machinery and mechanical appliances and parts and accessories of such articles, state, in pertinent part, that:

5. For the purposes of these notes, the expression "machine" means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85.

The combined effect of the section notes and cited EN is such that if the cast iron fireplace dampers constitute “any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85,” classification within heading 7325 is precluded. Therefore, we are first addressing the competing provision. Only if classification in the competing provision is precluded will we address classification in subheading 7325.10.00, HTSUS.

Relevant ENs to heading 8481 provide, in pertinent part:

This heading covers taps, cocks, valves and similar appliances, used on or in pipes, tanks, vats or the like to regulate the flow (for supply, discharge, etc.), of fluids (liquid, viscous or gaseous), or, in certain cases, of solids (e.g., sand) [emphasis added]. The heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or a gas [emphasis added].

The appliances regulate the flow by opening or closing an aperture (e.g., gate, disc, ball, plug, needle or diaphragm) [emphasis added]. They may be operated by hand (by means of a key, wheel, press button, etc.), or by a motor, solenoid, clock movement, etc., or by an automatic device such as a spring, counterweight, float lever, thermostatic element or pressure capsule [emphasis added].

The terms “damper,” “flue” and “chimney” are not defined in the HTSUS or the ENs. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

Grolier’s Encyclopedia (Grolier Electronic Publishing, 1994) describes a “chimney” as follows:

A chimney is a hollow vertical shaft used to remove the products of combustion from a building.

Originally the term chimney referred to the hearth, its surroundings, and the flue, but it is now understood to mean the structure that conducts smoke and gases from the FIREPLACE or other fuel-burning appliance to the atmosphere. The exhaust function of the chimney flue depends on the difference in density between the air column in the shaft and an equal column of outside air. The warmer air in the flue, being less dense, is forced up and out, carrying the smoke and gases from the fire with it. Generally, the taller the chimney, the better its draft, since a longer stack produces a greater density differential. Downdrafts in the flue are overcome by constructing a smoke shelf, formed to a concave profile, at the bottom of the chimney and above the fireplace. The shape of the shelf serves to deflect descending air currents upward into the rising air column. Because the updraft effect operates whenever the density differential exists, it is important to close the chimney damper to prevent heat loss through the flue when the fireplace is not in use.

Webster’s II New Riverside University Dictionary, Houghton Mifflin Co., 1988, provides the following definitions:

1. “damper” (p. 346) – 2. An adjustable plate, as in the flue of a furnace or stove, for controlling draft.

2. “flue” (p. 490) – a conduit, as a pipe, tube or channel through which hot air, gas, steam or smoke may pass.

3. “chimney” (p. 256) – a structural passage through which smoke and gases escape from a fire or furnace: flue.

4. “valve” (p. 1275) – a device that regulates the flow of gases, liquids or loose materials through a structure, as a pipe, or through an aperture by opening, closing or obstructing a port or passageway.

The cast iron fireplace dampers are manufactured to utilize one of several mechanisms (poker, rotary, ratchet, or chain) to open and close the lid of the damper. The lid is manufactured to fit snugly on the frame. The articles, in their condition as imported, are designed, constructed and intended to either permit, restrict or prevent the flow of air or smoke (heated air, ash and soot) into the flue and chimney. Unquestionably, the opening and closing of the lid of the damper regulates and controls the flow of smoke (as well as ash and soot) into the flue of the chimney while a fire is burning in the firebox. The lid of the damper also prevents the escape of air into the flue when the fireplace is not in use.

In its supplemental submission, the protestant asserts that HQ 956866, dated January 24, 1994, and HQ 950043, dated October 21, 1991, support its position that the fireplace dampers are classifiable under heading 7325. We disagree. HQ 956866 contains the following language:

For an article to be classified under subheading 8481.40.00, HTSUS, it must have a passageway for the gas, liquid or solid to move through and a restricting, blocking or diverting component inserted into the passageway. There has to be some physical movement inside the passageway to restrict, block or divert. The Tornado Sure Stop Detonation Flame Arrestors function is to dissipate heat. It does not divert or regulate the gas flow. Additionally, a safety or relief valve is one that generally blows open when a pre-set line pressure is reached which vents the pressure before the system is damaged. The Tornado Sure Stop Detonation Flame Arrestors do not function in this manner. They physically lack the mechanical components to vent, divert or variably restrict the gas flow. Therefore, we are of the opinion that they are not classifiable under subheading 8481.40.00, HTSUS, as safety or relief valves.

HQ 950043 determined, in reliance upon the ENs to heading 7325, that cast iron spill protectors and cast iron ventilation boxes (articles not containing a mechanism or gate valve – articles similar to those in HQ 956866 insofar as they do not contain a mechanism) are classifiable under subheading 7325.10.00, HTSUS. Because of the fact that the goods that were the subject of these two rulings lacked any mechanism or mechanical components to vent, divert, or variably restrict flow of liquids or gases, they are significantly different from the subject articles. The conclusions of the rulings are applicable only in distinguishing the fireplace dampers from articles determined to be classifiable in heading 7325, HTSUS.

We find that the cast iron fireplace dampers are ejusdem generis with the “taps, cocks, valves and similar appliances” described in the EN to heading 8481. The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, of the same class or kind, teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” NisshoIwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). The CIT further stated that “[a]s applicable to customs classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Nissho, p. 157. Heading 8481 provides for “taps . . . valves and similar appliances . . . or the like[,]” making an enumeration of specific things followed by a general word or phrase. “The general word or phrase is held to refer things of the same kind as those specified.” Sports Graphics, Inc. v. United States, 24 Fed. 3d 1390, 1392 (Fed. Cir. 1994). The subheadings within heading 8481 contain reference to “gate valves,” articles we find to be substantially similar to the fireplace dampers in question (and subject of an analogy made by counsel at the March 22, 2000, meeting and in its April 18, 2000 supplemental submission). Accordingly, we find that the cast iron fireplace dampers under
consideration are sufficiently similar to the articles provided for in heading 8481, HTSUS, as to be classifiable in that heading, and to preclude classification in heading 7325, HTSUS.

This determination comports with a previous ruling of this office. In New York Ruling Letter (NY) A83121, dated June 4, 1996, actuator operated air dampers were held to be classifiable in heading 8481, HTSUS.

HOLDING:

The cast iron fireplace dampers are classifiable under subheading 8481.80.30, HTSUS, as taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like . . . other hand operated appliances of iron or steel.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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