CLA-2 RR:CR:GC 965297 GOB
Staci Robinson
LEP Profit International, Inc.
16038 Vickery
Suite 2000
Houston, TX 77032
RE: Revocation of NY 803374; Heaters
Dear Ms. Robinson:
This letter is with respect to NY 803374 issued to you on November 9, 1994, on behalf of the Dearborn Company, Inc., by the Customs Area Director, New York Seaport, with respect to the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of propane heaters (model nos. DIR18LP and DIR30LP). We have reviewed the classifications of the propane heaters set forth in NY 803374 and have determined that it is incorrect. This ruling sets forth the correct classification.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY 803374, as described below, was published in the Customs Bulletin on November 28, 2001.
One comment was received in response to the notice. The commenter expressed “no comment on the propriety of the proposal to consider liquid propane to be a gas fuel for purposes of classification in HTSUS heading 7321” but stated that the proposed rulings “fail to articulate sufficient explanation for classification of the subject articles as ‘portable.’ “ We will address the portability issue in the LAW AND ANALYSIS section of this ruling.
FACTS:
The articles at issue were described in NY 803374 as follows:
The merchandise is the Dearborn Infrared Heater, model numbers DIR18N, DIR30N, DIR18LP, and DIR30LP. All models are vent-free, steel heaters that can be floor or wall mounted. The heater is available in two sizes, 18,000 Btu and 30,000 Btu. Models DIR18N and DIR30N are fueled by natural gas. Models DIR18LP and DIR30LP are fueled by liquid propane.
In NY 803374, Customs classified the natural gas heaters in subheading 7321.81.10, HTSUS, as: “Stoves, ranges, grates, cookers . . . and similar nonelectric domestic appliances, and parts thereof, of iron or steel: . . . Other appliances: . . . For gas fuel or for both gas and other fuels: Portable.” In the same ruling, Customs classified the propane heaters in subheading 7321.82.10, HTSUS, as: “Stoves, ranges, grates, cookers . . . and similar nonelectric domestic appliances, and parts thereof, of iron or steel: . . . Other appliances: . . . For liquid fuel: Portable.”
ISSUE:
What is the classification under the HTSUS of the subject heaters?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied. GRI 6 provides in pertinent part: “For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.”
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUS provisions under consideration are as follows:
7321 Stoves, ranges, grates, cookers, (including those with subsidiary boilers for central heating), barbeques, braziers, gas rings, plate warmers and similar nonelectric domestic appliances, and parts thereof, of iron or steel:
Other appliances:
7321.81 For gas fuel or for both gas and other fuels:
7321.81.10 Portable
7321.81.50 Other
* * * * *
7321.82 For liquid fuel:
7321.82.10 Portable
7321.82.50 Other
The natural gas heaters are not portable as they must be connected to a gas source. Accordingly, we find that they are classified in subheading 7321.81.50, HTSUS.
With respect to the liquid propane heaters, the crucial issue is whether the subject articles are appliances “for gas fuel or for both gas and other fuels” (subheading 7321.81, HTSUS) or “for liquid fuel” (subheading 7321.82, HTSUS). We have examined the definitions of “propane” in various resources.
The Van Nostrand Reinhold Encyclopedia of Chemistry (4th ed., 1984) defines “propane” in pertinent part as follows: “. . . colorless gas [technical specifications omitted] . . . The content of propane in natural gas varies with the source of the natural gas, but on average is about 6%. Propane is also obtainable from petroleum sources. Liquefied propane is marketed as a fuel for outlying areas where other fuels may not be readily available and for portable cook stoves . . . Propane and other liquefied gases are clean and appropriate for most heating purposes . . .”
Hawley’s Condensed Chemical Dictionary (12th ed., 1993) defines “propane” in pertinent part as follows: “. . . Properties: Colorless gas, natural-gas odor . . . an asphyxiant gas . . . Derivation: From petroleum and natural gas.”
The Random House Dictionary of the English Language (unabridged ed., 1973) defines propane as follows: “a colorless, flammable gas [symbol omitted] of the alkane series, occurring in petroleum and natural gas: used chiefly as a fuel and in organic synthesis. Also called dimethylmethane.”
We conclude from these authorities that propane is a gas, and not a liquid.
The HTSUS classifies propane in subheading 2711.12.00, HTSUS, as: “Petroleum gases and other gaseous hydrocarbons: Liquefied: . . . Propane.” We interpret that classification to the effect that propane is a liquefied gas.
EN 27.11 provides in pertinent part: “This heading covers crude gaseous hydrocarbons obtained as natural gases or from petroleum, or produced chemically. Methane and propane are, however, included even when pure. These hydrocarbons are gaseous at a temperature of 15 degrees C and under a pressure of 1,013 millibars (101.3 kPa). They may be presented under pressure as liquids in metal containers and are often treated, as a safety measure, by the addition of small quantities of highly odiferous substances to indicate leaks. They include, in particular, the following gases, whether or not liquefied: (1) Methane and propane, whether or not pure . . . “ [Emphasis in original.] We interpret this language of the EN to the effect that propane is a gas.
Accordingly, we find that the propane heaters are appliances for gas fuel.
This determination is consistent with the following rulings: HQ 950297 dated December 31, 1991, where Customs classified a catalytic safety heater which uses liquid propane gas in subheading 7321.81.50, HTSUS; and NY 838467 dated March 28, 1989, where Customs classified a table top gas grill fueled by low pressure liquefied petroleum gas in subheading 7321.11.10, HTSUS.
We are unable to determine from the available information if the liquid propane heaters are portable. We find that they are portable if they are not intended to be permanently affixed to the floor or wall when in use. They are not portable if they are permanently affixed. See United Import Sales, Inc. v. United States, 66 Cust. Ct. 355 (1971).
Therefore, the liquid propane heaters are classified in subheading 7321.81.10, HTSUS, if they are not permanently affixed. They are classified in subheading 7321.81.50, HTSUS, if they are permanently affixed.
HOLDINGS:
The natural gas heaters are classified in subheading 7321.81.50, HTSUS, as: “Stoves, ranges, grates, cookers . . . 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.”
If the propane heaters are not permanently affixed to the floor or wall, they are classified in subheading 7321.81.10, HTSUS, as: “Stoves, ranges, grates, cookers . . . and similar nonelectric domestic appliances, and parts thereof, of iron or steel: . . . Other appliances: For gas fuel or for both gas and other fuels: Portable.” If they are permanently affixed, they are classified in subheading 7321.81.50, HTSUS, as: “Stoves, ranges, grates, cookers . . . 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.”
EFFECT ON OTHER RULINGS:
NY 803374 is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division