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HQ 087731


September 7, 1990

CLA-2 CO:R:C:G 087731 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8516.79.0000

Mr. Ned H. Marshak
Sharretts, Paley, Carter & Blauvelt, P.C. 80 Broad Street
New York, New York 10004

RE: New York Ruling Letter (NYRL) 830092 dated August 2, 1988

Dear Mr. Marshak:

We have been asked to reconsider the result reached in NYRL dated August 2, 1988, addressed to you concerning the tariff classification of a water bed heater from Taiwan.

FACTS:

The water bed heater which was the subject of the referenced ruling was described as consisting of a "heating pad made of a plastic type material which is electronically wired for use as a water bed heater. There is also a heat controller and two wood screws. The heat controller can be connected to the heater to control the temperature as desired. The controller is housed separately in a small plastic container featuring a temperature dial and a sensor capillary tube. The two screws can be used to fasten the heat controller to a bed frame."

Customs took the position that the water bed heater, heat controller and screws were an entirety classifiable under subheading 8516.10.0080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as electric instantaneous or storage water heaters and immersion heaters, other water heaters, with duty at the rate of 3.7 percent ad valorem.

Our New York office is now of the opinion that the merchandise is more properly classifiable under the provision for other electro-thermic appliances, other, in subheading 8516.79.0000, HTSUSA, with duty at the rate of 5.3 percent ad valorem.

ISSUE:

Is the water bed heater more specifically described as an electro-thermic appliance than as electric instantaneous or storage water heaters and immersion heaters?

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such heading or notes do not otherwise require, according to [the remaining GRI's taken or order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The Explanatory Notes (EN), which are the official interpretation of the Harmonized System at the international level, list a number of exemplars for subheading 8516.10, TSUSA. These exemplars are as follows:

(1) geysers in which the water is heated as it flows through;

(2) storage water heaters (whether or not of the pressure type), i.e., heat-insulated tanks with immersion heating elements. In these heaters, water is heated gradually;

(3) dual system heaters in which the water is heated either electrically or by connection to a fuel-heated hot water system . . .;

(4) electrode hot water boilers. . .;

(5) immersion heaters for attachment to tanks, vats, etc., for heating water or other liquids. . .;

(6) electric equipment for producing boiling water.

The exemplars listed are devices that are local or centralized units to provide hot water throughout the house. They are used in residences to heat water for family consumption by bathing, cooking, or similar use. "Immersion heaters" may be large enough to heat a boiler, or small enough to fit into a cup.

It is clear that the water bed heater is not of the class or kind of merchandise which falls within the purview of subheading 8516.10, HTSUSA, even though it warms water. Its function in not that of the units of that subheading. Furthermore, EN (E) (13) to Heading 8516 states that other elecctro-thermic appliances of a kind used for domestic purposes includes "bed warmers." The instant heater operates exactly as any other bed warmer and there is no reason to limit this to a traditional solid-fill mattress bed.

HOLDING:

The water bed heater is classifiable under the provision for other electro-thermic appliances, other in subheading 8516.79.0000, HTSUSA, with duty at the rate of 5.3 percent ad valorem.

NYRL of August 2, 1988 is revoked. This ruling will be effective as to entries of this merchandise made after the date of this letter.

Sincerely,


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