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HQ 967495

February 18, 2005

CLA-2: RR:CR:TE 967495 KSH


TARIFF NO.: 9403.20.0015

Port Director
Customs and Border Protection
1000 2nd Avenue
Seattle, Washington 98104

RE: Application for Further Review of Protest 3001-04-100321

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review (AFR) of protest no. 3001-04-100321, filed by Target Stores.

The protest is against Customs and Border Protection’s (CBP) classification and liquidation of four entries of towel warmers and drying racks under subheading 8516.79.0000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatusand hand dryers; electric flat irons; other electrothermic appliances of a kind used for domestic purposes: Other electrothermic appliances: Other” with a rate of duty of 2.7% ad valorem. Liquidation of the entries occurred on August 20, 2004, September 3, 2004 and September 17, 2004. Protestant entered the merchandise subject to this protest in subheading 9403.20.0015, HTSUSA, as “Other furniture and parts thereof: Other metal furniture: Household: Other” with a rate of duty of free.

Protestant filed the protest with an AFR on November 12, 2004, challenging the reclassification of the entry at issue. The importer’s request for AFR was approved. The protest was timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).

Protestant has alleged the decision against which the protest is filed involves questions of fact that have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts. No rulings on substantially similar merchandise have been located, thus, further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25.


The merchandise at issue is a chrome finish portable free standing towel warmer and drying rack. It is identified as “Item No. 097080011.” It measures 18.5 inches wide by 36 inches high by 12 inches deep. The towel warmer and drying rack is designed to be placed on the floor and plugs into a standard electrical outlet via a seven foot power cord located on the right side.


Whether the towel warmer and drying rack is classified in subheading 8516.79.0000, HTSUS, as an other electrothermic appliance or in subheading 9403.20.0015, HTSUS, as other household metal furniture.


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

Chapter 94, HTSUSA, provides for furniture, among other articles. Note 2 to Chapter 94 states that the articles (other than parts) referred to in Headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground. The General Explanatory Notes to Chapter 94 state, in relevant part, with regard to the meaning of furniture, at (A):

For the purposes of this Chapter, the term "furniture" means:

Any "movable" articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices, . . . .”

Heading 9403, HTSUSA, provides for other furniture and parts thereof. The EN to Heading 9403, HTSUSA, states, in part:

This heading covers furniture and parts thereof, not covered, by the previous headings. It includes furniture for general use (e.g., cupboards, show-cases, tables, telephone stands, writing-desks, escritoires, book-cases, and other shelved furniture, etc.) and also furniture for special uses.

The heading includes furniture for: private dwellings, hotels, etc.; offices; schools; churches; shops, stores, workshops, etc.; laboratories or technical offices.

Chapter 85, HTSUSA, provides for electrical machinery and equipment and parts thereof, among other things. Note 1(c) to Chapter 85, HTSUSA, provides:

1. This Chapter does not cover:

(c) Electrically heated furniture of Chapter 94.

The exclusionary notes in the EN to Heading 8516, HTSUSA, also provide:

This group excludes:

(e) Furniture (e.g., linen cupboards and serving trollies) equipped with heating elements (Chapter 94).

Thus, if the towel warmer and drying rack is classifiable as furniture of Chapter 94, HTSUSA, then it is precluded from classification in Chapter 85, HTSUSA.

CBP has consistently classified floor-standing racks, valets, stands, etc. as furniture. See NY F82717, dated February 23, 2000, NY K89208, dated September 10, 2004, NY 808682, dated April 11, 1995 and NY 886976, dated June 15, 1993. Although this towel warmer and drying rack is powered by electricity, Chapter 94, HTSUSA, does not exclude electrically operated or electrothermic furniture. Conversely, Chapter 85, HTSUSA, does not cover electrically heated furniture. The towel warmer and drying rack is a movable article constructed for placing on the floor or ground and is used mainly for a utilitarian purpose.


The towel warmer and drying rack (Item No. 097080011) is classified in subheading, 9403.20.0015, HTSUSA, as “Other furniture and parts thereof: Other metal furniture: Household: Other.” The applicable general column one duty rate is free.

The protest should be ALLOWED. In accordance with the Protest/Petition Processing Handbook, (CIS HB, June 2002, pp 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. No later than sixty days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World WideWeb at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.


Myles B. Harmon, Director

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