CLA-2 CO:R:C:M 951941 LTO
District Director
U.S. Customs Service
Second and Chestnut Streets
Suite 102
Philadelphia, Pennsylvania 19106
RE: Protest No. 1101-92-100237; Kerosene Heaters; EN 73.21; EN
85.16; 8516.29.00; Note 1(f) to Section XV
Dear Sir:
This is our response regarding Protest No. 1101-92-100237,
dated April 15, 1992, which concerns the classification of
kerosene heaters under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The articles in question are the TOYOSTOVE FF-51, LASER 52,
LASER 55 and LASER 72 heaters. The protestant states that they
are electrically-operated, wickless, vented kerosene heaters.
The heaters are thermostatically controlled and are equipped with
electronically-operated safety systems. They are also equipped
with a programmable set-back timer which allows fully automatic
operation 24 hours a day.
At start-up, a ceramic-type ignitor raises the burner to the
pre-set temperature and an electro-mechanical (solenoid) fuel
pump delivers fuel. Combustion is self-sustaining and the
ignitor is turned off automatically.
Temperature control over the range of 40 to 90 degrees
fahrenheit is achieved through the temperature control knobs and
a room temperature sensor. Heat output regulation is achieved by
controlling the fuel flow rate from the pump. There are two fuel
flow rates--high and low--corresponding to the burning modes. - 2 -
When the room sensor senses a temperature below the setting of
the control knobs, the fuel flow is switched to high. When the
temperature is above the setting, the fuel flow is adjusted to
low. If the temperature remains above the setting, the heater
will be turned off and re-ignited when the room cools
sufficiently.
Fresh combustion air is provided (through a flue pipe and
blower motor fan) from the outside of the house. Heat is
delivered to the room by a circulation fan that pushes the heater
air out through the front of the heater (FF-51 and LASER 52 are
also equipped with the "Laser Clean" heating element which
provides radiant heat). Combustion gases are vented outside the
house through the flue pipe.
The heaters were entered under subheading 8516.29.00, HTSUS,
which describes portable, fan-forced electric space heating
apparatus. They were liquidated under subheading 7321.82.10,
HTSUS, which describes stoves, ranges and similar nonelectric
domestic appliances.
ISSUE:
Whether the kerosene heaters are electric or non-electric
for tariff purposes.
LAW AND ANALYSIS:
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 . . . ."
The headings at issue are as follows:
7321 Stoves, ranges, grates, cookers . . .,
barbecues, braziers, gas rings, plate
warmers and similar nonelectric domestic
appliances, . . . of iron or steel
* * * * * * * * * * * * *
8516 Electric instantaneous or storage water
heaters and immersion heaters; electric
space heating apparatus and soil heating
apparatus; . . . other electrothermic
appliances of a kind used for domestic
purposes . . .
- 3 -
Note 1(f) to Section XV, HTSUS, states that Section XV does
not cover articles of Section XVI. Thus, if the kerosene heaters
are classifiable under Heading 8516, HTSUS (a Section XVI
heading), they cannot be classified under Heading 7321, HTSUS (a
Section XV heading).
The Harmonized Commodity Description and Coding System
Explanatory Note (EN) to Heading 8516, pg. 1358, states that the
heading covers electric storage heating apparatus, "in which
electric elements heat up a solid (e.g., bricks) or a liquid
which stores the heat produced and subsequently releases it, when
required, to the surrounding atmosphere." In the heaters in
question, electric elements do not heat up a solid or a liquid.
Rather, a ceramic-type ignitor raises the burner to a pre-set
temperature and an electro-mechanical (solenoid) fuel pump
delivers fuel. This fuel provides the source of heat. Thus, the
kerosene heaters are not electric space heating apparatus of the
type described in Heading 8516, HTSUS.
EN 73.21, pg. 1032, states that Heading 7321, HTSUS, "covers
a group of appliances which meet all of the following
requirements:
(i) be designed for the production and utilisation
of heat for space heating, cooking or boiling
purposes;
(ii) use solid, liquid or gaseous fuel, but not
electricity;
(iii) be normally used in the household or for
camping."
The protestant argues that the kerosene heaters fail to meet
requirement (ii) because they use electricity. This argument is
not persuasive. Requirement (ii) refers to the appliance's
source of heat, not whether the appliance uses electricity to
control subsidiary components, such as, an ignitor, sensor or
pump.
EN 73.21, pg. 1033, states that "the heading excludes
appliances also using electricity for heating purposes, as in the
case of combined gas-electric cookers . . . [emphasis in
original]." Thus, if the heaters in question used electricity
for heating purposes, they would be excluded from Heading 7321,
HTSUS. However, the heaters' sole source of heat is kerosene,
and they are, therefore, classifiable under this heading,
specifically under subheading 7321.82.10, HTSUS.
HOLDING:
The kerosene heaters are classifiable under subheading - 4 -
7321.82.10, HTSUS, which provides for "[s]toves, ranges, grates,
cookers . . . , barbecues, braziers, gas rings, plate warmers and
similar nonelectric domestic appliances . . . of iron or steel
. . . [o]ther appliances . . . [f]or liquid fuel . . .
[p]ortable." The corresponding rate of duty for articles of this
subheading is 5.7% ad valorem.
Accordingly, the protest should be denied. 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