June 19 2008
HQ H005076
CLA-2 OT: RR: CTF: TCM H005076 RM
Ms. Linda Hamanaka
Ken Hamanaka Co., Inc.
5777 West Century Boulevard, #760
Los Angeles, CA 90045
RE: Request for reconsideration of New York Ruling Letter R03085, dated January 20 2006; Classification of an Electric Fireplace
Dear Ms. Hamanaka:
We have reviewed New York Ruling (NY) R03085, dated January 20, 2006, issued to Dagan Industries, concerning the tariff classification of an electric fireplace and found it to be in error. In that ruling, U.S. Customs and Border Protection (CBP) classified the subject electric fireplace in subheading 8516.79.0000, Harmonized Tariff Schedule of the United States (HTSUS).
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 was published on May 7, 2008, in the Customs Bulletin, Volume 42, No. 20. No comments were received in response to this notice.
FACTS:
The merchandise at issue is a freestanding electric fireplace designed to be placed in front of a wall. The unit is fitted with an electric heater with a blower as well as colored lamps and a flicker device to imitate coal or wood fire. The heater is encased in a wooden housing that is 46 inches wide, 16 inches deep and 22 inches tall.
ISSUE:
What is the correct tariff classification of the electric fireplace under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
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:
* * *
Electric space heating apparatus and electric soil heating apparatus:
* * *
8516.29.00 Other ….
* * *
Portable Space heaters:
8516.29.0030 Fan-forced ….
* * *
8516.29.0090 Other ….
* * *
Other electrothermic appliances:
* * *
8516.79.0000 Other . . . .
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
There is no dispute that the subject merchandise is classified in heading 8516, HTSUS. What is at issue is whether the electric fireplace is included in the scope of subheading 8516.29, HTSUS, as an “electric space heating apparatus,” or in subheading 8516.79, HTSUS, as an “other electrothermic appliance.”
GRI 6 provides that 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 GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
Subheading 8516.29, HTSUS, provides for “electric space heating apparatus.” The term “space heater” is not defined in the HTSUS. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). Finally, the explanatory notes, while not binding law, offer guidance as to how tariff terms are to be interpreted. See Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting explanatory notes are "intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation").
Webster’s Third New International Dictionary (unabridged ed.; 1993) defines “space heater” as: “a self-contained unit that warms a room or space by converting to heat in that space the fuel or electric energy supplanted to it.” The Random House Dictionary of the English Language (unabridged ed.; 1973) defines “space heater” as: “a small furnace for air in the room in which it is situated.” Merriam-Webster’s Dictionary Online defines “space heater” as: “a usu. portable appliance for heating a relatively small area.” (http://www.m-w.com/cgi-bin/dictionary; last viewed on March 25, 2008).
Based on the definitions stated above, we find the electric fireplace at issue to be “a small furnace” that “warms a room or space” by “converting to heat … the electric energy supplanted to it.” Moreover, the unit is fitted with an electric heater with a blower capable of heating a “relatively small area” or “the room in which it is situated.” Accordingly, it is classifiable under subheading 8516.29, HTSUS, the eo nomine provision for electric space heaters.
Our conclusion is consistent with the ENs to heading 8516, HTSUS, which provide, in pertinent part:
(B) ELECTRIC SPACE HEATING APPARATUS AND SOIL HEATING APPARATUS
This group includes:
(2) Electric Fires (fan heaters and radiant heaters), including portable types with parabolic reflectors and sometimes with built-in fans. Many of these fires are fitted with colored lamps and flicker devices to imitate a coal or wood fire.
The subject fireplace is fitted with an electric heater and blower (i.e., a built-in fan). Moreover, it has colored lamps and a flicker device to imitate a coal or wood fire. Thus, it is the type of “space heating apparatus” described in the ENs to heading 8516, HTSUS. Specifically, it is an “electric fire.”
We now turn to whether the electric fireplace is a “portable” space heater. The term “portable” is not defined in the HTSUS. Webster’s Third New International Dictionary (unabridged ed.; 1993) defines “portable” as: “1. Capable of being carried: easily or conveniently transported: light or manageable enough to be readily moved (a --- grill) (a --- power drill).” The Compact Edition of the Oxford English Dictionary (1987) defines “portable” as: “1. Capable of being carried by hand or on the person; capable of being moved from place to place; easily carried or conveyed . . .” The Random House Dictionary of the English Language (unabridged ed.; 1973) defines “portable” as: “1. Capable of being transported or conveyed; a portable stage; 2. Easily carried or conveyed by hand: a portable typewriter . . .” Merriam-Webster’s Dictionary Online defines portable as: “1. a: capable of being carried or moved about [a portable TV] . . .” (http://www.m-w.com/cgi-bin/dictionary; last viewed on March 25, 2008).
In HQ 964803, dated January 10, 2002, we discussed the portability of barbecue grills. The eleven grill models at issue in that ruling weighed between 175 and 300 pounds (without propane tanks) and had cooking compartments of steel, and frames constructed of steel, stainless steel, or steel and wood. The grills were approximately four feet tall, five feet wide and two feet deep. All of the grills had castors or wheels. There, despite the fact that the grills could be “moved from place to place” via their wheels, CBP determined that they were “not easily carried or conveyed by hand" and "not of the class or kind of article normally considered by the industry to be portable."
Similarly, the instant electric fireplace is designed for fixed use in a living room. See Facts. While it is “capable of being moved from place to place,” it is not “easily carried or conveyed by hand” or “on the person.” Moreover, there is a separate type of space heater that the industry considers to be portable because it is smaller, lighter and easier to move. See, e.g., NY M86531, dated October 13, 2006; NY R03588, dated April 14, 2006; and NY 869033, dated December 2, 1991. The applicable subheading for the electric fireplace is 8516.29.0090, HTSUS.
HOLDING:
By application of GRI 1 through GRI 6, the subject electric fireplace is classifiable in subheading 8516.29.0090, HTSUS, which provides for: “[e]lectric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic 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: [e]lectric space heating apparatus and electric soil heating apparatus: [o]ther: [o]ther. The 2008 column one, general rate of duty is 3.7 percent ad valorem.
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.
EFFECT ON OTHER RULINGS:
NY R03085, dated January 20, 2006, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division