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HQ 950297


December 31, 1991

CLA-2 CO:R:C:M 950297 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7321.81.50

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?

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