H311957

U.S. Customs and Border Protection HQ H311957 September 15, 2020 CLA-2 OT:RR:CTF:EMAIN H311957 PF CATEGORY: Classification TARIFF NO.: 8516.29.0090; 9903.88.33 Port of Los Angeles/Long Beach U.S. Customs and Border Protection Department of Homeland Security 301 E. Ocean Blvd., Suite 1400 Long Beach, CA 90802 Attn: Brooke McCoy, Import Specialist Re: Protest and Application for Further Review No: 2704-20-130833; Applicability of Section 301 trade remedies of electric fireplace inserts from China Dear Port Director: The following is our decision as to Protest and Application for Further Review No. 2704-20-130833, which was filed on May 20, 2020 on behalf of Ashley Furniture Industries, Inc. (“protestant” or “Ashley”). The protest pertains CBP’s determination on the application of the exclusion annotated under Chapter 99 U.S. Note 20(ll)(53) of the Harmonized Tariff Schedule of the United States (“HTSUS”). The subject merchandise was entered by protestant between January 5, 2019 and May 28, 2019. Between November 29, 2019 and May 22, 2020, CBP at the Port of Los Angeles/Long Beach liquidated the entries under subheading 8516.29.0090, HTSUSA and 9903.88.03, HTSUS.” On May 20, 2020, protestant filed a protest and AFR alleging that CBP erred in finding that the exclusion annotated under Chapter 99 U.S. Note 20(ll)(53) of the HTSUS, applied to its merchandise. FACTS: The merchandise at issue in this protest are electric fireplace inserts that are used with Ashley’s TV stands and entertainment centers. The fireplace inserts are fitted with an electric heater and include LED-lit fire display that imitates a wood fire. The LED “flame” can operate with our without infrared heat. Depending on the model, the fireplace inserts provide heat up to 5386 BTU/1500W and warms rooms that are between 400 to 1000 square feet. The electric fireplace inserts weigh less than 21Kg. It is stated that the fireplace inserts are classified, pursuant to General Rule of Interpretation (“GRI”) 1, in subheading 8516.29.0090, HTSUSA, which provides for “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: other: other.” At the time of entry, these products were subject to Section 301 duties of 10-25 percent ad valorem (depending on date of entry), as they were classified under subheading 8516.29.0090, HTSUSA and had a country of origin of China. See Notice of Modification of Section 301 Action: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 84 Fed. Reg. 20,459 (May 9, 2019). Effective September 24, 2018, however, the U.S. Trade Representative granted an exclusion from the Section 301 duties for “(53) Electric fireplaces, weighing not more than 21 kg (described in statistical reporting number 8516.29.0090).” See Notice of Product Exclusions 84 Fed. Reg. 57803, 57, 806 (Oct. 28, 2019). In your request, you suggest that the subject merchandise satisfies the exclusion provision for electric fireplaces, as published under the Federal Register Annex enumeration (53), is specifically provided for under Section XXII, Chapter 99, Subchapter III U.S. Note 20(II), HTSUS, as follows: (II) The U.S. Trade Representative determined to establish a process by which particular products classified in heading 9903.88.03 and provided for in U.S. notes 20(e) and (f) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.03, and by which particular products classified in heading 9903.88.04 and provided for in U.S. note 20(g) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.04. See 83 Fed. Reg. 47974 (September 21, 2018) and 84 Fed. Reg. 29576 (June 24, 2019). Pursuant to the product exclusion process, the U.S. Trade Representative has determined that the additional duties provided for in heading 9903.88.03 or in heading 9903.88.04 shall not apply to the following particular products, which are provided for in the enumerated statistical reporting numbers: (53) Electric fireplaces, weighing not more than 21 kg (described in statistical reporting number 8516.29.0090). The protestant claims that it is eligible to claim the secondary tariff number of subheading 9903.88.33, HTSUS, by virtue of falling under the scope of the above exclusion. The protestant provided the following pictures of the subject merchandise: 
 
 ISSUE: Whether the electric fireplace inserts satisfy an exclusion provision pertaining to products classified under subheading 8516.29.0090, HTSUSA and are eligible to claim the secondary tariff number of subheadings 9903.88.33, HTSUS. LAW AND ANALYSIS: Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protests No. 3004-17-100339 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. There is no dispute as to the classification of the fireplace inserts, which are classified pursuant to General Rule of Interpretation (“GRI”) 1, in subheading 8516.29.0090, HTSUSA, which provides for “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: other: other” The issue in this case is whether the fireplace inserts are accurately described by the terms of U.S. Note 20(II)(53) and afforded the exclusion under 9903.88.33, HTSUS. The term “electric fireplace” is not defined in the language of heading 8516, HTSUS. However, the Explanatory Notes for heading 8516, Note (B) provides guidance for “Electric Space Heating Apparatus and Soil Heating Apparatus,” which includes “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 coloured lamps and flicker devices to imitate a coal or wood fire.” Moreover, in New York (NY) Ruling N003331, dated December 6, 2006, CBP classified free-standing electric fireplaces in subheading 8516.29.0090, HTSUSA. The models at issue in NY N00331 were also described as an “electric fireplace insert.” CBP noted that the fireplaces had the appearance of a real fireplaces, but used an electric heater with a blower to warm an interior space. The subject fireplace inserts appear to be substantially similar to the merchandise at issue in NY N003331. The fireplace inserts are fitted with an electric heater and include LED-lit fire display that imitates a wood fire. The LED flame can operate with our without infrared heat. Depending on the model, the fireplace inserts provide heat up to 5386 BTU/1500W and warms rooms that are between 400 to 1000 square feet. The fireplace inserts are said to weigh less than 21 kilograms. The fireplace inserts also do not appear to be portable. Based on the specifications provided by protestant, the fireplace inserts are described by statistical reporting numbe

Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protests No. 3004-17-100339 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. There is no dispute as to the classification of the fireplace inserts, which are classified pursuant to General Rule of Interpretation (“GRI”) 1, in subheading 8516.29.0090, HTSUSA, which provides for “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: other: other” The issue in this case is whether the fireplace inserts are accurately described by the terms of U.S. Note 20(II)(53) and afforded the exclusion under 9903.88.33, HTSUS. The term “electric fireplace” is not defined in the language of heading 8516, HTSUS. However, the Explanatory Notes for heading 8516, Note (B) provides guidance for “Electric Space Heating Apparatus and Soil Heating Apparatus,” which includes “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 coloured lamps and flicker devices to imitate a coal or wood fire.” Moreover, in New York (NY) Ruling