HQ 954774: Protest No. 0101-93-100046; Economizers; Boilers; Auxiliary Plant; Heading 8402; Parts; Section XVI, Note 2; ENs 84.02, 84.04

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 954774

                        November 18, 1993

CLA-2 CO:R:C:M 954774  RFA

CATEGORY: Classification

TARIFF NO.: 8404.10.00


District Director of Customs
312 Fore Street
P.O. Box 4688
Portland, Maine  04112

RE:  Protest No. 0101-93-100046; Economizers; Boilers; Auxiliary
     Plant; Heading 8402; Parts; Section XVI, Note 2; ENs 84.02,
     84.04


Dear District Director:

     The following is our decision regarding the request for
further review of Protest No. 0101-93-100046, which concerns the
classification of an economizer for a steam-generating boiler
under the Harmonized Tariff Schedule of the United States
(HTSUS).  The entries of the subject merchandise were liquidated
on March 19, 1993.  The protest was timely filed on June 16,
1993. 

FACTS:

     The subject merchandise is a vertical tube, single gas pass
multi-header economizer which is normally used in recovery
boilers because it is easy to clean and the maintenance costs are
low.  Flue gas flows longitudinally downwards in the economizer
package and upwards in empty passes.  

     The merchandise was entered under subheading 8402.90.00,
HTSUS, as parts of steam or other vapor generating boilers.  The
entry was liquidated under subheading 8404.10.00, HTSUS, as
auxiliary plant for use with boilers. 

     The subheadings under consideration are as follows:

     8402.90.00:    Steam or other vapor generating boilers
                    (other than central heating hot water boilers
                    capable also of producing low pressure
                    steam); super-heated water boilers. . .:
                    [p]arts . . . . 

          Goods classifiable under this provision have a general,
          column one rate of duty of 6.5 percent ad valorem.

     8404.10.00     Auxiliary plant for use with boilers of
                    heading 8402 or 8403 (for example,
                    economizers, super-heaters, soot removers,
                    gas recoverers) . . . : [a]uxiliary plant 
                    for use with boilers of heading 8402 or 8403
                    . . . .

          Goods classifiable under this provision have a general,
          column one rate of duty of 7.0 percent ad valorem.

ISSUE:

     Whether the economizer is classifiable as parts of steam or
other vapor generating boilers or as auxiliary plant for use with
boilers under the HTSUS?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.

     The importer argues that the merchandise is not auxiliary in
nature, but rather, it is a replacement for the original
economizers which were ripped out as part of a retrofit project. 
The importer states that economizers are an integral part of the
recovery boiler system and should not be classified as an
auxiliary plant for use with boilers.

     The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS.  While not
legally binding, 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.  EN 84.02, pages 1143-
1144, states: 

          In order to increase or regulate their output or
     efficiency, the boilers of this heading are often
     equipped with a wide range of auxiliary apparatus. 
     Such auxiliary apparatus includes economizers, air pre-
     heaters, super-heaters. . . and other apparatus of
     heading 84.04, . . . .

          Such auxiliaries are classified with the boilers
     in this heading when they are presented together
     therewith, whether they already form, or are designed  to form subsequently, a whole with those boilers; if
     presented separately they are to be classified in their
     own appropriate headings.

     While we agree that economizers are a part for a steam
generating boiler, Section XVI, Note 2 provides the following
guidance on the classification of parts:

     parts of machines (not being parts of the articles of
     heading No. 84.84, 85.44, 85.45, 85.46 or 85.47) are to
     be classified according to the following rules:

     (a)  Parts which are goods included in any of the
          headings of Chapter 84 and 85 (other than headings
          No. 84.85 and 85.48) are in all cases to be
          classified in their respective headings;

     (b)  Other parts, if suitable for use solely or
          principally with a particular kind of machine, or
          with a number of machines of the same heading
          (including a machine of heading No. 84.79 or
          85.43) are to be classified with the machines of
          that kind.  However, parts which are equally
          suitable for use principally with the goods of
          headings No. 85.17 and 85.25 to 85.28 are to be
          classified in heading 85.17;

     (c)  All other parts are to be classified in heading
          No. 84.85 or 85.48.

     According to Section XVI, Note 2(a), if the economizer is
specifically provided for in another heading it cannot be
classified as a part.  EN 84.02 states that economizers when
presented separately from a boiler are to be classified under
heading 8404, HTSUS, as auxiliary plant for use with boilers.  EN
84.04, page 1145, lists the types of auxiliary plant for use with
boilers which include:

     Economizers for pre-heating the boiler feed water by
     utilizing the waste heat of the flue gases or, in some
     types, exhaust steam.  They usually consist of headers
     fitted with a system of cast iron or steel gilled
     tubing, sometimes contained within a separate chamber
     of sheet metal into which the flue gases or exhaust
     steam are discharged.  In the mixing type economizer
     waste steam is passed directly into a chamber
     containing the feed water.

     By application of Section XVI, Note 2(a) and the guidance
provided by ENs 84.02 and 84.04, we find that economizers are
specifically provided for under heading 8404, HTSUS, as an
auxiliary plant for use with boilers. 

 HOLDING:

     For the foregoing reasons, we find that the economizer is
classifiable under subheading 8404.10.00, HTSUS, as an auxiliary
plant for use with boilers of heading 8402, HTSUS.

     You should deny the protest in full.  In accordance with
Section 3A(11)(b) of Customs Directive 099 3550-065, dated August
4, 1993, Subject: Revised Protest Directive, this decision,
together with the Customs Form 19, should be mailed by your
office to the protestant no later than 60 days from the date of
this letter.  Any reliquidation of the entry in accordance with
the decision must be accomplished prior to mailing of 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 the public via the Diskette Subscription Service, Lexis,
Freedom of Information Act and other public access channels.

                              Sincerely,



                              John Durant, Director