HQ 087731: New York Ruling Letter (NYRL) 830092 dated August 2, 1988

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       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.




















                                          -2-


                 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. . .;


















                                          -3-


                 (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,





                                        John Durant, Director
                                        Commercial Rulings Division




















            6cc AD NY Seaport
            1cc James Smyth, NY Seaport
            cahill library/peh
            087731