CLA-2 CO:R:C:M 950297 KCC
District Director
U.S. Customs Service
511 N. W. Broadway Federal Building
Portland, Oregon 97209
RE: Protest No. 91-2904-000108; Gas Heater; non-portable
Dear District Director:
This is in response to the request for Further Review of
Protest No. 91-2904-000108, dated July 3, 1991, regarding the
tariff classification of gas heaters under the Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
The merchandise under consideration is the Olympian 3100
catalytic safety heater ("gas heater") which uses liquid propane
gas as a fuel. The protestant, U.S. Catalytic Corporation,
received New York Ruling (NYR) 830987 dated July 27, 1988, which
classified the gas heater under item 653.52, Tariff Schedules of
the United States (TSUS), as a heating apparatus of base metal
used in the household or office. Additionally, NYR 830987 opined
as to the possible HTSUS tariff classification which was to
replace the TSUS in 1989 which was not a binding opinion. NYR
830987 stated that Customs position regarding the tariff
classification of this merchandise under the HTSUS was under
subheading 7321.81.50, HTSUS, as other gas heaters.
The protestant entered the merchandise under subheading
7321.81.50, HTSUS, as other gas heaters. However, you liquidated
the gas heaters under subheading 7321.81.10, HTSUS, as portable
gas heaters. You state that the protestant did not submit proof
of the gas heater's principal use, and that the size, weight, and
heating capacity of the gas heater indicated that it was similar
to portable kerosene heaters.
ISSUE:
Are the gas heaters properly classified under subheading
7321.81.10, HTSUS, as portable gas heaters, or under subheading
7321.81.50, HTSUS, as non-portable gas heaters?
LAW AND ANALYSIS:
The Olympian 3100 catalytic safety heater is properly
classified under subheading 7321.81, HTSUS, which provides for
"Stoves, ranges, grates, cookers (including those with subsidiary
boilers for central heating), barbecues, braziers, gas rings,
plate warmers and similar nonelectric domestic appliances, and
parts thereof, of iron or steel...Other appliances...For gas fuel
or for both gas and other fuels."
The issue is whether Olympian 3100 catalytic safety heater
is a portable or non-portable gas heater. The term "portable" is
not defined in the HTSUS or the Explanatory Notes of the
Harmonized Commodity Description and Coding System (HCDCS), which
are looked to for the proper interpretation of the HTSUS. Tariff
terms are construed in accordance with their common and
commercial meaning. Nippon Kogasku (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). The
Random House College Dictionary (1968), defines portable as:
1) capable of being carried or conveyed. 2) easily carried
or conveyed by hand....
Additionally, Webster's New World Dictionary, Third College
Edition (1984), defines portable as:
1) that can be carried 2 a) easily carried or moved, esp. by
hand [a portable TV] b) that can be used anywhere because
operated by self-contained batteries [a portable radio]....
The Olympian 3100 catalytic safety heater is a non-portable
gas heater which is classified under subheading 7321.81.50,
HTSUS, as "...Other appliances...For gas fuel or for both gas and
other fuels...Other." According to the installation manual and
information accompanying this protest, the gas heater is
principally designed to be permanently installed in a household
room or office as a secondary heater. The gas heater must be
properly connected to fuel piped in from an external source such
as a gas line. Although the information submitted does
demonstrate that the gas heater can be made portable, it is not
designed to be easily carried, conveyed or moved. The
descriptive information submitted with the protest reveals that
the principal use of the Olympian 3100 catalytic safety heater is
for permanent installation in a household room or office.
HOLDING:
The Olympian 3100 catalytic safety heater is properly
classified under subheading 7321.81.50, HTSUS, as "Stoves,
ranges, grates, cookers (including those with subsidiary boilers
for central heating), barbecues, braziers, gas rings, plate
warmers and similar nonelectric domestic appliances, and parts
thereof, of iron or steel...Other appliances...For gas fuel or
for both gas and other fuels...Other."
This protest should be granted in full. A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division