CLA-2 OT:RR:CTF:TCM H015427 RM
Port Director
Port of Baltimore
United States Customs and Border Protection
40 South Gay Street
Baltimore, MD 21202
RE: Heated Blankets and Heated Seat Pads; AFR of Protest No.1303-06-100136
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No.1303-06-100136, timely filed by counsel on behalf of Sports Imports Ltd., concerning the classification of heated blankets and heated seat pads under the Harmonized Tariff Schedule of the United States (“HTSUS”). We note that the heated cushions entered with the merchandise at issue and subsequently liquidated by U.S. Customs and Border Protection (“CBP”) under subheading 9404.90.20, HTSUS, are not at issue in this AFR.
FACTS:
This protest concerns heated blankets and heated seat pads imported from China. The heated blankets are identified as item HB001T and measure 58 inches by 42 inches. They are polyester fleece blankets with wires running between the top and bottom layers. The wires are connected to a thermostat with an on/off switch and an 8 foot power cord that plugs into a 12-volt cigarette lighter in a vehicle.
Two types of heated seat pads are under consideration. The first type, identified as a “12-Volt Car, Boat, RV or Baby Seat Variable Temp Fleece Heated Pad,” item HP-001T, is a 16 inch by 16 inch polyester fleece pad designed for placement on an automotive seat. The pad contains electric wiring, a temperature control unit, and an 8 foot power cord that plugs into a 12-volt cigarette lighter in a vehicle. The second type of seat pad is merely identified as an “automobile seat heater.” It is designed for insertion into the seat of a car and is used to warm both the back and bottom portions of the seat. According to the submitted information, it can be incorporated into existing assembly lines or may be used by after-market shops to retrofit heating pads into existing non-heated seats. Neither type of seat heater is padded.
The goods were entered on April 14, 2006, under subheading 8516.90.90, HTSUS, as “Other electrothermic appliances of a kind used for domestic purposes; …: Parts: Other.” CBP rate-advanced these entries on July 28, 2006, and liquidated the heated blankets under subheading 6301.10.00, HTSUS, as “Blankets and traveling rugs: Electric blankets,” and both types of heated seat pads under subheading 9404.90.20, HTSUS, as “Articles of bedding and similar furnishings … stuffed or internally fitted with any material or of cellular rubber of plastics: Other: Pillows, cushions and similar furnishings: Other.” The protest and AFR were timely filed on October 25, 2006.
ISSUE:
What is the proper tariff classification of the heated blankets and heated seat pads under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The Protest was timely filed, within 180 days of liquidation for all involved entries (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1303-06-100136 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the Protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to substantially similar merchandise. Specifically, Protestant argues that the decision is inconsistent with Headquarters Ruling (“HQ”) 963001, dated July 22, 1999, wherein CBP classified certain automotive seat heaters under heading 8543, HTSUS.
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides, in part, that "for legal purposes, classification shall be determined according to terms of the headings 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, GRIs 2 through 6 may then be applied, in order.
The 2006 HTSUS provisions under consideration are as follows:
6301 Blankets and traveling rugs:
6301.10.00 Electric blankets …
8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof:
Other electro-thermic appliances:
8516.79.00 Other …
8516.80 Electric heating resistors:
8516.80.80 Other …
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and apparatus:
8543.89 Other: Other:
8543.89.96 Other …
* * *
Legal Note 1(a) to Chapter 85, HTSUS, states:
This chapter does not cover:
Electrically warmed blankets, bed pads, foot-muffs or the like; electrically warmed clothing, footwear or ear pads or other electrically warmed articles worn on or about the person[.]
Additional U.S. Rules of Interpretation 1, HTSUS, provides, in part:
In the absence of special language or context which otherwise requires:
(a) 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[.]
I. Heated Blankets
Protestant argues that the electric blankets in question are classified under heading 8543, HTSUS, as “Electrical machines and apparatus, having individual functions, not included elsewhere in [Chapter 85].” He objects to classification under heading 6301, HTSUS (“Blankets and traveling rugs”), in subheading 6301.10.00, HTSUS, as “Electric blankets,” on the grounds that the provision only covers electric blankets for domestic/household use. In support of this position, Protestant cites New York Ruling Letter (“NY”) E82183, dated June 2, 1999, wherein CBP classified a portable electric blanket for use during surgical procedures under heading 8543, HTSUS.
It is undisputed that the goods at issue are blankets, which are provided for in heading 6301, HTSUS. Subheading 6301.10.00, HTSUS, provides eo nomine for “Electric blankets.” An eo nomine provision includes all forms of a named article unless specifically excluded. See National Advanced Systems v. United States, 26 F.3d 1107, 1111 (Fed. Cir. 1994). In this case, as no exclusions apply, the blankets are classified under heading 6301, in subheading 6301.10.00, HTSUS. This conclusion is consistent with the Explanatory Notes (“ENs”) to heading 6301, HTSUS, which state that “Electrically heated blankets are also included in the heading.” See also NY J82274, dated April 1, 2003 (classifying an electric blanket described as the “Car Cozy 12-Volt Heated Travel Blanket” in subheading 6301.10.00, HTSUS).
We note that NY E82183 is not persuasive concerning the classification of the blankets at issue because there is no analysis provided in that ruling, and it does not otherwise explain why the blanket was classified in Chapter 85, HTSUS. Moreover, that file is not available for our review due to the events of September 11, 2001.
II. Heated Seat Pads
At the outset, we note that after receiving additional information from the importer on the composition of the heated pads at issue, the Port agrees with Protestant that they are not classified in heading 9404, HTSUS, as cushions. Heading 9404, HTSUS, is limited to “Articles of bedding and similar furnishings [including cushions] which are ... stuffed or internally fitted with any material[.]” The instant seat pads are not stuffed or internally fitted with any material and thus, we agree that they are not “cushions” of heading 9404, HTSUS.
Protestant argues that the two types of heated seat pads at issue are classified under heading 8543, HTSUS, as “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [Chapter 85].” He submits that Note 1(a) to Chapter 85, HTSUS, does not exclude the seat pads from that Chapter because they are not goods designed for household use and therefore, they are not of the same kind as the articles named in the Note. Protestant relies on HQ 963001, dated July 22, 1999, for this position. In that ruling, CBP determined that a heated seat pad designed for automotive use was not subject to Note 1(a) because: (1) it was designed for automotive, not domestic/household use, and (2) it was designed to be sat upon, while the named articles were designed to be placed on or worn over the person.
HQ 963001 was revoked by HQ H062211 (November 23, 2009). See Customs Bulletin, Volume 43, No. 27, dated December 10, 2009. However, in HQ H062211, we clarified our position on Note 1(a) to Chapter 85, HTSUS, which is that it excludes electrically warmed articles of bedding and electrically warmed articles designed to be worn on or about the person from that Chapter. See HQ H062211, dated November 23, 2009. Accordingly, we agree with Protestant that neither type of seat pad is excluded from classification in Chapter 85, HTSUS, by the Note, because they are not similar to the articles described therein.
12-Volt Car, Boat, RV or Baby Seat Variable Temp Fleece Heated
Pads
Heading 8516, HTSUS, provides, in relevant part, for “[O]ther electrothermic appliances of a kind used for domestic purposes[.]” The heading is a “use” provision, governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, cited above. The ENs to heading 8516, HTSUS, state, in relevant part:
(E) OTHER ELECTRO-THERMIC APPLIANCES OF A KIND USED FOR DOMESTIC PURPOSES
This group includes all electro-thermic machines and appliances provided they are normally used in the household. Others include:
* * *
(18) Bed warmers.
* * *
CBP has previously defined the term “domestic” as “of or pertaining to the family or household.” See HQ 965861, dated January 7, 2003 (citing the Merriam-Webster Collegiate Dictionary, 10th ed., pg. 344 (1999)). Accordingly, goods of the heading must be the kind of electrically-heated good that is used in the household. However, while heading 8516, HTSUS, is a use provision, it is not an actual use provision. In Primal Lite, Inc. v. United States, 15 F. Supp 2d 915, 917 (Ct. Int’l Trade 1998), aff’d, 182 F.3d 1362 (Fed. Cir. 1999), the Court of International Trade explained that:
The use of the term ‘of a kind’ is nothing more than a statement of the traditional standard for classifying importation by their use, namely that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs.
Thus, under Primal Lite, to be classified under heading 8516, HTSUS, an article need not actually be used in the house, but must be the type of good that is used in the house – such as a bed warmer. After considering their characteristics and uses, we find that the instant heated pad and a bed warmer are the same kind of good. Both provide warmth to the object upon which it is placed and, in turn, to the person sitting or laying on it. We also find that the type of connector/adapter that an article may have does not affect whether the article itself is a type of household good.
CBP has classified similar heating pads under heading 8516, HTSUS. See HQ H062211 (November 23, 2009); HQ 967454 (January 10, 2005); HQ 087731 (September 7, 1990); and NY R01528 (March 16, 2005).
b) Automotive Seat Heaters
Heading 8516, HTSUS, provides, in relevant part, for “Electrical heating resistors.” In HQ H035440, dated December 20, 2008, CBP relied on several dictionary definitions to define the term “resistor” as “a device that limits the flow of electric current in an electrical circuit.” In addition, the ENs to heading 8516, HTSUS, state, in relevant part:
(F) ELECTRIC HEATING RESISTORS
With the exception of those of carbon (heading 85.45), all electrical resistors are classified here, irrespective of the classification of the apparatus or equipment in which they are to be used.
They consist of bars, rods, plates, etc., or lengths of wire (usually coiled), or special material which becomes very hot when current is passed through it. The material used varies (special alloys, compositions based on silicon carbide, etc.) ….
Wire resistors are usually mounted on insulating formers (e.g., of ceramics, steatite, mica or plastics) or on soft insulating core (e.g., of glass fibres or asbestos) ….
Resistors remain classified here even if specialized for a particular machine or apparatus ….
The instant seat heater provides heat to the automotive seat through electrical resistance, i.e., the alloy wiring “resists” the flow of electric current provided by the automobile’s electric source and dissipates the resulting heat throughout the pad. In addition, it is not made of carbon. Accordingly, by application of GRI 1, we find the merchandise to be an “electric heating resistor,” classified under heading 8516, HTSUS. Our conclusion is in keeping with the ENs to heading 8516, which describe the electric heating resistors of the heading as “consist[ing] of … lengths of wire … usually mounted on soft insulating core … even if specialized for a particular … apparatus[.]” See HQ H062211 for a discussion on why the seat heaters are not classified as parts or accessories of car seats.
Insofar as both heated seat pads are classified under heading 8516, HTSUS, they cannot be classified under heading 8543, HTSUS, by the terms of that heading, because they are “specified or included elsewhere in [Chapter 85].”
HOLDING:
By application of GRI 1, the heated blankets are classified under heading 6301, specifically in subheading 6301.10.00, HTSUS, which provides for: “Blankets and traveling rugs: Electric blankets.” The 2006 column one, general rate of duty is 11.4 % ad valorem.
By application of GRI 1 and U.S. Additional Rule of Interpretation 1(a), the “12 Volt Car, Boat, RV or Baby Seat Variable Temp Fleece Heated Pads” are classified under heading 8516, specifically in subheading 8516.79.00, HTSUS, which provides, in relevant part, for: “Other electrothermic appliances of a kind used for domestic purposes; …: Other electrothermic appliances: Other.” The 2006 column one, general rate of duty is 2.7 % ad valorem.
By application of GRI 1, the automotive seat heaters that are for integration into car seats are classified under heading 8516, specifically in subheading 8516.80.80, HTSUS, which provides, in relevant part, for: “[E]lectric heating resistors, other than those of heading 8545; …: Electric heating resistors: Other.” The 2006 column one, general rate of duty is Free.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are instructed to deny the Protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with the Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division