CLA-2 CO:R:C:M 950335 LTO
Mr. David R. Dunlap
Refractory Anchors, Inc.
9836 S. 219th E. Avenue
Broken Arrow, Oklahoma 74014
RE: Refractory anchors; NY 832149 revoked; EN 84.17; EN 85.14;
7326.90.90; 8514.90.00; Add. U.S. Rule of Interpretation
1(a)
Dear Mr. Dunlap:
This is in reference to NY ruling letter 832149, issued to
you on September 26, 1988, which concerned the tariff
classification of refractory anchors under the Harmonized Tariff
Schedule of the United States (HTSUS). We have been asked to
reconsider this ruling by the New York Seaport Customs Office.
FACTS:
The articles subject to this reconsideration are refractory
anchors fabricated from stainless steel wire. They range in size
from 3/16" to 3/8" in diameter. Prior to importation, the
products are cut and then bent into various "V"-shaped forms.
After importation, they are welded into industrial furnaces and
are used to hold refractory material to furnace walls. They are
used in heavy industrial operations, such as, in cement kilns,
oil refineries and other heat processing equipment. The
refractory anchors are used in both electric and non-electric
furnaces and ovens.
ISSUE:
Whether the refractory anchors are principally used in
electric or non-electric furnaces and ovens.
LAW AND ANALYSIS:
In NY 832149, dated September 26, 1988, the refractory
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anchors were classified under subheading 7326.90.90, HTSUS,
which provides for "[o]ther articles of iron or steel . . .
[o]ther . . . [o]ther." At the time of this ruling, the HTSUS
had not yet replaced the Tariff Schedules of the United States
(TSUS). The applicable TSUS item number was stated to be item
657.2585, TSUS, which provided for other articles of iron or
steel, not coated or plated with precious metal.
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ." In a telephone
conversation with a member of my staff, a representative of your
office advised us that the refractory anchors can be used in
both non-electric and electric furnaces or ovens.
Heading 8417, HTSUS, provides for "[i]ndustrial or
laboratory furnaces and ovens, including incinerators,
nonelectric, and parts thereof [emphasis added]." Subheading
8417.90.00, HTSUS, provides for parts of these furnaces.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Co-operation
Council's official interpretation of the Harmonized System.
While not legally binding, they provide a commentary on the scope
of each heading of the Harmonized System and are generally
indicative of proper interpretation of these headings. EN 84.17,
pg. 1168, states that this heading covers "non-electrical
industrial or laboratory type furnaces and ovens, designed for
the production of heat in chambers at high or fairly high
temperatures by the combustion of fuel (either directly in the
chamber or in separate combustion chambers). They are used for
the heat treatment (e.g., by roasting, fusion, calcination or
decomposition) of various kinds of products which may be placed
on the fire-bed, in crucibles, in retorts or on shelves." The
articles in question are welded into industrial furnaces and are
used to hold refractory material to furnace walls.
EN 84.17, pg. 1168, also states that this heading excludes
"blocks, bricks and similar refractory or ceramic materials for
building or lining furnaces and ovens." The refractory anchors,
however, are not used for building or lining the furnace, nor are
they refractory or ceramic materials. Rather, they are stainless
steel articles used to keep furnace fire bricks together against
furnace walls. Thus, they are not specifically excluded by the
EN to Heading 8417, HTSUS.
Heading 8514, HTSUS, provides for "[i]ndustrial or
laboratory electric (including induction or dielectric) furnaces
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and ovens; other industrial or laboratory induction or dielectric
heating equipment; parts thereof [emphasis added]." EN 85.14,
pg. 1352, states that this heading covers "a number of industrial
or laboratory type electro-thermic machines, apparatus and
appliances in which the heat is obtained electrically."
Subheading 8514.90.00, HTSUS, provides for parts of electric,
industrial furnaces and ovens.
Additional U.S. Rule of Interpretation 1(a) states that
"[i]n the absence of special language or context which otherwise
requires--a tariff classification controlled by use (other than
actual use) is to be determined in accordance with the use in the
United States at, or immediately prior to, the date of
importation, of goods of that class or kind to which the imported
goods belong, and the controlling use is the principal use." The
refractory anchors can be used in both electric and non-electric,
industrial furnaces and ovens. This office has determined that
this type of hung refractory is principally used in gas-fired,
industrial furnaces. This coincides with your representative's
statement that the majority of your refractory anchors are used
in non-electric furnaces. Therefore, the articles in question
are classifiable under subheading 8417.90.00, HTSUS.
HOLDING:
The refractory anchors are classifiable under subheading
8417.90.00, HTSUS, which provides for parts of nonelectric
industrial or laboratory furnaces and ovens. The corresponding
rate of duty for articles of this subheading is 5.7% ad valorem.
This notice to you should be considered a revocation of NY
832149, dated September 26, 1988, under section 177.9(d) of the
Customs Regulations [19 CFR 177.9(d)]. It is not to be applied
retroactively to NY 832149 [19 CFR 177.9(d)(2)] and will not,
therefore, affect past transactions for the importation of the
merchandise under this ruling. However, for the purposes of
future transactions involving merchandise of this type, NY 832149
will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, you may, at your discretion, notify
this office and apply for relief from the binding effects of this
decision as may be warranted by the circumstances.
EFFECT ON OTHER RULINGS:
NY 832149, dated September 26, 1988, is hereby revoked
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pursuant to section 177.9(d) of the Customs Regulations [19 CFR
177.9(d)].
Sincerely,
John Durant, Director
Commercial Rulings Division