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HQ 951941


August 18, 1992

CLA-2 CO:R:C:M 951941 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 7321.82.10

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 . . .

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

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