CLA-2 RR:CR:GC 960428 HMC
Port Director of Customs
112 W. Stutsman St.
Pembina, ND 58271
RE: PRD 3401-96-10071; Grilles and Diffusers; Subheadings
8481.80 and 8302.41; Section XV, Note 1 (f); Section XVI, Note
1(k); General Explanatory Note to Section XV; Explanatory Note to
Chapter 84; Explanatory Note 8481; Other Articles of Iron or
Steel; Other Articles of Aluminum; Other Base Metal Mountings,
Fittings and Similar Articles Suitable for Buildings; Taps,
Cocks, Valves and Similar Appliances; NY A86457 Affirmed.
Dear Port Director:
This is our decision on Protest 3401-96-10071, filed against
your classification of grilles and diffusers. The earliest entry
under protest was liquidated on June 28, 1996, and this protest
timely filed on September 20, 1996.
FACTS:
The merchandise under protest are grilles and diffusers
(grilles) designed to be fitted on ceilings or walls at the ends
of heating, ventilating and air conditioning ducts. The grilles
are imported in circular, square and rectangular shapes, and some
of the models have movable slats or louvers that open and close
to control air flow.
The grilles were entered and liquidated based on New York
Ruling (NY) A86457, dated August 8, 1996, which classified the
same merchandise, according to the constituent material, as
either other articles of iron or steel under subheading
7326.90.85, or as other articles of aluminum, under subheading
7616.99.50 of the Harmonized Tariff Schedule of the United States
(HTSUS). Protestant disagreed with NY A86457 and Customs
classification of the merchandise and filed a Protest.
The provisions under consideration are as follows:
7326 Other articles of iron or steel:
7326.90 Other:
Other:
Other:
7326.90.85 Other
* * * *
7616 Other articles of aluminum:
Other:
7616.99 Other:
7616.99.50 Other
* * * *
8302 Base metal mountings, fittings and similar
articles suitable for furniture, doors,
staircases, windows, blinds, coachwork,
saddlery, trunks, chests, caskets or the
like; base metal hat racks, hat-pegs,
brackets and similar fixtures; castors with
mountings of base metal; automatic door
closers of base metal; and base metal parts
thereof:
Other mountings, fittings and similar
articles, and parts thereof:
8302.41 Suitable for buildings:
Other:
8302.41.60 Of iron or steel, of
aluminum or of zinc
* * * *
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:
Other appliances:
Hand operated:
8481.80.30 Of iron or steel
8481.80.50 Of other materials
ISSUE:
Whether the grilles are classifiable as other mountings,
fittings and similar articles under subheading 8302.41.60, HTSUS;
as other appliances, hand operated under subheading 8481.80,
HTSUS; or as other articles of aluminum or of iron or steel under
subheadings 7326.90.85 or 7616.99.50, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the 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.
In NY A86457, dated August 8, 1996, protestant received a
prospective ruling which classified the grilles, according to
their constituent material under subheadings 7326.90.85 or
7616.99.50. In a letter, dated August 26, 1996, protestant
argued that the merchandise should have been classified instead
as valves or similar appliances under subheading 8481.80. In a
later submission, dated January 6, 1997, protestant made the
alternative claim that not all of the grilles were classifiable
under subheading 8481.80 and that the merchandise is better
described in subheading 8302.41.60, HTSUS, as other mountings,
fittings and similar articles, suitable for buildings.
Note 1(f) to Section XV, HTSUS, which includes Chapters 73,
76 and 83, states that "[t]his section does not cover articles of
section XVI (machinery, mechanical appliances and electrical
goods)." Note 1(k) to Section XVI, which includes Chapter 84,
states that "[t]his section does not cover articles of [C]hapter
82 or 83."
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 under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
General EN to Section XV, HTSUS, states that
[e]ach of the Chapters 72 to 76 and 78 to 81
covers particular unwrought base metals and
products of those metals such as bars, rods,
wire or sheets, as well as articles thereof,
except certain specified articles of base
metal which, without regard to the nature of
the constituent metal, are classified in
Chapter 82 or 83, these Chapters being
limited to the specified articles.
To support its contention that the merchandise is described
by heading 8302, protestant cites the Concise Oxford's [sic]
Dictionary. Protestant states that the word "fittings" is
defined as "the fixtures and fitments of a building," and the
word "fixtures" as "something fixed or fastened in position;"
"articles attached to a house or land and regarded as legally
part of it." Protestant argues that, based on these definitions,
the grilles are considered fittings of heading 8302 because they
are permanently attached to a wall or ceiling.
We disagree with protestant's contention that the grilles
are described by heading 8302. Heading 8302 provides for base
metal mountings, fittings and similar articles suitable for
furniture, doors, staircases, windows, blinds, coachwork,
saddlery, trunks, chests, caskets or the like. We note
protestant's definition of the word "fittings." However, we find
that the term "fittings" must be read in conjunction with the
rest of the words of heading 8302. The words "suitable for
furniture, doors, staircases, windows, blinds, coachwork,
saddlery, trunks, chests, caskets or the like" qualify the
meaning of "fittings." In the context of heading 8302, the term
"fittings" do not include the subject grilles because they will
not be attached to any object like the ones mentioned in the
heading. Moreover, they are not like any of the items enumerated
in EN 83.02. The grilles are thus not described by heading 8302.
In the alternative, protestant claims that the grilles are
described by heading 8481, and cites Appeal No. AP-95-096 (August
14, 1996), a decision by the Canadian International Trade
Tribunal, to support its contention. We must then determine if
the merchandise are valves of heading 8481.
General EN to Chapter 84, at page 1233 states that "[i]n
general, Chapter 84 covers machinery and mechanical apparatus and
Chapter 85 electrical goods. Furthermore, EN 84.81 states that
heading 8481
covers taps, cocks, valves and similar
appliances, used on 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).
EN 84.81 further states that the
appliances regulate the flow by opening or
closing an aperture (e.g., gate, disc, ball,
plug, needle or diaphragm)."
In this instance, we believe that the grilles do not meet
the above definition of "valves and similar appliances." The
grilles are devices which have slats or louvers that open and
close in some models. The grilles are neither parts of machinery
nor mechanical appliances, nor do they possess a mechanism like
the articles of Chapter 84. The ENs provide examples of the kind
of items that are included in valves. Accordingly, a valve must
contain movable elements like a gate, disc, ball, plug, needle or
diaphragm. The grilles in this instance do not possess such a
device. Furthermore, they do not have matching seats for the
movable elements needed to regulate air flow. The slats of the
merchandise at issue do not regulate gas flow as envisioned by
the ENs, but simply direct the flow of air as it exits an air
duct. Therefore, the grilles are not valves described by heading
8481. In the absence of a more specific provision, the grilles
are instead articles described by heading 7326, if of iron or
steel, or by heading 7616, if of aluminum. We do not agree with
the Canadian International Trade Tribunal decision. A foreign
ruling is merely instructive of how others may classify like
goods and does not bind classification upon importation into the
United States. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug.
23, 1989). NY A86457 is affirmed.
HOLDING:
Under the authority of GRI 1, the grilles and diffusers are
provided for in headings 7326 and 7616, HTSUS. If made of steel,
they are classifiable under subheadings 7326.90.85, HTSUS, as
"Other articles of iron or steel: Other: Other: Other: Other. If
made of aluminum, they are classifiable under subheading
7616.99.50, HTSUS, as "Other articles of aluminum: Other: Other:
Other.
This 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 should mail this
decision, together with the Customs Form 19, to the protestant no
later than 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 days from the date of the decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division