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HQ 960659

DECEMBER 4, 1997

CLA-2 RR:CR:GC 960659 JAS


TARIFF NO.: 8516.10.00, 9905.00.00

Port Director of Customs
112 W. Stutsman St.
Pembina, ND 58271

RE: PRD 3401-97-100024; Immersion Water Heaters Used to Warm Fluids in Automotive Engine Blocks; Equipment for Repair or Maintenance of Motor Vehicles; NY A 88411; Denial of Protest for Failure to Support Claim, 19 CFR 174.13(a)(6)

Dear Port Director:

This is our decision on Protest 3401-97-100024, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of immersion water heaters, products of Canada. The entries were dated August 15, 18, 20, and 22, 1996, respectively, and were liquidated on November 29 and on December 6, 13, 20, 26 and 27, 1996. This protest was timely filed on February 26, 1997.


The merchandise under protest is immersion heaters or block heaters for motor vehicles. They are generally used for heating liquids, semi-liquid substances or gases, and function to maximize the cold weather starting ability of motor vehicles in geographic areas of extreme cold. These heaters are plugged into an external electrical outlet and mount into a hole in a motor vehicle engine block. Their purpose is to warm the water and antifreeze in the engine block.

The merchandise was entered under subheading 8516.10.00, HTSUS, as electric instantaneous or storage water heaters and immersion heaters. As a good of Canada under the terms of General Note 12, HTSUS, the importer sought duty-free entry under subheading 9905.00.00, HTSUS, as equipment provided for in subheading 8516.10 intended for use in the repair or maintenance of motor vehicles of headings 8702, 8703 or 9704 (excluding electric trolley buses and three-wheeled vehicles) or of
automobile truck tractors principally designed for the transportation of persons or goods. NY A88411, issued to the protestant on October 28, 1996, held that immersion heaters from Canada classifiable in subheading 8516.10.00, HTSUS, are eligible for duty-free treatment under subheading 9905.00.00, HTSUS, is cited as authority. Your office denied the claim under subheading 9905.00.00 because of a lack of evidence that the heaters were for repair or maintenance as required under that provision.


Whether merchandise of subheading 8516.10.00, HTSUS, is eligible for duty-free treatment under subheading 9905.00.00, HTSUS.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The record indicates that the ultimate consignee here is a general parts depot or distribution center. This fact, alone, is inconclusive. In fact, some immersion heaters may be sold as replacements for existing ones that have either malfunctioned or simply worn out, while others may be sold for vehicle engines that have never had one previously. Therefore, the heaters may actually be for repair or maintenance in some cases but not in others.

The claim under subheading 9905.00.00 was denied because of protestant's failure to establish compliance with the terms and conditions of this provision. Protests against decisions of the appropriate Customs officers must be in conformity with applicable statutory and regulatory requirements. Under 19 U.S.C. 1514(c)(1), a protest of a decision under subsection (a) of section 1514 must set forth distinctly and specifically each decision as to which protest is made. In addition, the Customs Regulations require that a protest set forth the nature of, and justification for the objection set forth distinctly and
specifically with respect to each decision. See 19 CFR 174.13(a)(6). The scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. Customs will consider all relevant claims that are supported by competent evidence. In acting on a protest, however, Customs lacks the legal authority to assume facts and arguments that are not presented and, therefore, not in the official record.

In this case, protest is properly made against your decision to deny the claim under subheading 9905.00.00, HTSUS. However, protestant's only argument in support of this claim is NY A88411, but this ruling was issued after the dates of the entries under protest. The entries were not made pursuant to or in reliance on this ruling. Moreover, the ruling merely states that subheading 9905.00.00, HTSUS, applies if the merchandise is eligible for that provision. For the reasons stated above, the immersion heaters are not eligible for entry under subheading 9905.00.00, HTSUS.


Under the authority of GRI 1, the immersion heaters under protest are provided for in heading 8516. They are classifiable in subheading 8516.10.00, HTSUS. The protest is DENIED as to the claim under subheading 9905.00.00, HTSUS, for failure to comply with the requirements of 19 CFR 174.13(a)(6).

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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