OT:RR:CTF:EMAIN H326375 MFT
Mr. Damon V. Pike
BDO USA, LLP
1450 Brickell Avenue, 18th Floor
Miami, FL 33131
Re: Request for Reconsideration of NY N324250; Classification of Outdoor Gas Grills
Dear Mr. Pike:
This letter is in response to your request, dated July 12, 2022, and filed on behalf of your client,
Nexgrill Industries, Inc., for the reconsideration of New York Ruling Letter (NY) N324250, dated March
7, 2022. There, U.S. Customs and Border Protection (CBP) classified two models of outdoor gas grills:
Model 720-1054 under subheading 7321.11.60 of the Harmonized Tariff Schedule of the United States
(HTSUS) and Model 720-1055 Option C under subheading 8516.60.40, HTSUS. You request that CBP
revoke NY N324250 and reclassify both models under subheading 8516.60.60, HTSUS. For the reasons
set forth below, we affirm our conclusions in NY N324250.
FACTS:
In NY N324250, Model 720-1054 is described as follows:
The first outdoor grill under consideration is referred to as model 720-1054. It is a gas grill
that consists of two warming racks, a lid with handle, a digital controller, firebox, griddle,
burners, grease tray and cup, charcoal tray and ash catcher, wheels, two shelves on the side,
and a stand, which are all primarily made of iron and steel. The grill uses liquid propane as
fuel and is designed for outdoor use in the backyard or on a patio. No gas valve knobs are
present on the main control panel. Instead, the digital controller includes lighted push
buttons that illuminate when the appliance power is activated. The digital grill contains
multiple electric microprocessors to monitor and control every function of the grill. There
is a power cord attached to the grill to use the electricity to control the flow of gas, cooking
temperature, etc. The grill would run off of a standard 20-pound propane tank.
You indicated that this model lacks an electric heating element. CBP found that Model 720-1054 was
classified under subheading 7321.11.60, HTSUS, which provides for, “Stoves, ranges, grates, cookers
(including those with subsidiary boilers for central heating), barbecues, braziers, gas rings, plate warmers
and similar nonelectric domestic appliances, and parts thereof, of iron or steel: Cooking appliances and
plate warmers: For gas fuel or for both gas and other fuels: Other: Other.”
The ruling describes Model 720-1055 Option C as follows:
The second outdoor grill under consideration is referred to as model 720-1055 Option C.
This grill shares the same functions and major components as the above model, apart from
being wider and adding an attached electric air oven. Per your correspondence, this is a
convection oven that uses a fan to circulate the heated air created from upper and lower
heating elements to cook the food. The main functions of the oven are to bake, broil, and
toast. [. . .] Further, we also note that you indicate the oven predominates in value over the
grill. This oven would not be considered portable, nor does it exceed a maximum width of
70 centimeters.
CBP found that Model 720-1055 Option C was classified under subheading 8516.60.40, HTSUS,
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 ovens; cooking stoves, ranges, cooking plates, boiling rings, grillers and
roasters: Cooking stoves, ranges and ovens.”
You request that we classify both models under subheading 8516.60.60, HTSUS, 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 ovens; cooking stoves, ranges, cooking plates, boiling rings, grillers and roasters: Other.”
ISSUES:
Whether the subject outdoor gas grill, Model 720-1054, is “nonelectric” or “electrothermic” for
purposes of headings 7321 and 8516, HTSUS, respectively.
Whether the subject outdoor gas grill with an electric air oven, Model 720-1055 Option C, is
classified as an “oven” under subheading 8516.60.40, HTSUS, or “other” than an oven under subheading
8516.60.60, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs).
GRI 1 provides that the classification of goods will 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 will then be applied in order.
GRI 6 provides that for legal purposes, 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 GRI 6, the relative section and chapter notes also apply, unless the
context otherwise requires.
2
In understanding the language of the HTSUS, the Harmonized Commodity Description and
Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally
binding, provide commentary on the scope of each heading of the HTSUS, and are the official
interpretation of the Harmonized System at the international level. 1
The HTSUS headings and subheadings under consideration are as follows:
7321 Stoves, ranges, grates, cookers (including those with subsidiary boilers for
central heating), barbecues, braziers, gas rings, plate warmers and similar
nonelectric domestic appliances, and parts thereof, of iron or steel:
*****
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:
8516.60 Other ovens; cooking stoves, ranges, cooking plates, boiling
rings, grillers and roasters:
8516.60.40 Cooking stoves, ranges and ovens
*****
8516.60.60 Other
Note 1(f) to Section XV, HTSUS, states that the section does not cover “[a]rticles of Section XVI
(machinery, mechanical appliances and electrical goods).” Headings 7321 and 8516, HTSUS, fall under
Sections XV and XVI, HTSUS, respectively. Per GRI 1, if the subject grills meet the terms of heading
8516, HTSUS, then Note 1(f) to Section XV, HTSUS, prohibits the grills from being classified under
heading 7321, HTSUS.
I. Classification of Model 720-1054
The relevant terms of heading 8516, HTSUS, require that Model 720-1054 constitute an
“electrothermic” appliance “of a kind used for domestic purposes.” There is no dispute that this model is
“of a kind used for domestic purposes” within the meaning of heading 8516, HTSUS. We thus examine
whether Model 720-1054 is “electrothermic.”
Neither the HTSUS nor the ENs provide a definition for “electrothermic.” In the absence of a
definition of a term in the HTSUS or ENs, the term’s correct meaning is its common and commercial
meaning. 2 The common and commercial meaning may be determined by consulting dictionaries,
lexicons, scientific authorities, and other reliable sources. 3 We previously consulted dictionaries to define
1
See Treasury Decision (T.D.) 89-80, 54 Fed. Reg. 35127, 35127–28 (Aug. 23, 1989).
2
See Nippon Kogaku, Inc. v. United States, 69 C.C.P.A. 89, 92 (Ct. Cust. App. 1982) (stating that to determine the
intent of the legislature, “tariff terms are to be construed in accordance with their common and commercial
meanings, which are presumed to be the same”).
3
See C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 134 (Ct. Cust. App. 1982) (citing Schott Optical Glass
v. United States, 67 C.C.P.A. 32, 34 (Ct. Cust. App. 1979)).
3
“electrothermic” as “[o]f or relating to the production of heat by electricity.” 4 The General EN to Chapter
85, HTSUS, confirms this interpretation when it states:
This Chapter covers: [. . .]
(3) Certain machines and appliances which depend for their operation on the properties
or effects of electricity, such as its electro-magnetic effects, heating properties, etc.
(headings 85.05, 85.11 to 85.18, 85.25 to 85.31 and 85.43). [emphasis added]
An appliance that does not depend on the heating properties of electricity to produce heat does
not come within the meaning of the term “electrothermic” under heading 8516, HTSUS, and it is for that
reason we find that the term “electrothermic” does not describe Model 720-1054. The fact that this model
must receive electricity via a power cord to function does not, per se, transform the grill into an
“electrothermic” appliance of heading 8516, HTSUS. By the same token, the grill’s use of the digital
controller and electric microprocessors is to facilitate the production of heat by propane gas, not through
electricity’s heating effects. 5 The term “electrothermic” requires more than the subsidiary electronic
control of heat-generating gas exhibited here. 6 As such, Model 720-1054 cannot be classified under
heading 8516, HTSUS, as an “electrothermic” appliance.
Turning to heading 7321, HTSUS, the EN for that heading provides in pertinent part:
This heading covers a group of appliances which meet all of the following requirements:
(i) be designed for the production and utili[z]ation of heat for space heating, cooking or
boiling purposes;
(ii) use solid, liquid or gaseous fuel, or other source of energy (e.g., solar energy);
(iii) be normally used in the household or for camping. [. . .]
The heading also covers stoves incorporating subsidiary boilers for central heating. On the
other hand the heading excludes appliances also using electricity for heating purposes, as
in the case of combined gas-electric cookers for example (heading 85.16). [emphasis in
original] 7
4
See Headquarters Ruling Letter (HQ) H297833 (dated Dec. 20, 2018) (finding that certain wallpaper strippers were
properly classifiable as “electrothermic appliances” because they were “powered by electricity to heat water and
produce steam”); HQ 965863 (dated Dec. 3, 2002) (citing HOUGHTON MIFFLIN CO., WEBSTER’S II NEW RIVERSIDE
UNIVERSITY DICTIONARY 423 (1988)).
5
See generally MCGRAW-HILL ENCYCLOPEDIA OF SCIENCE & TECHNOLOGY: ELE - EYE 139 (7th ed., 1992)
(describing the production of heat by electric current).
6
C.f. HQ 951941 (dated Aug. 18, 1992) (finding that certain kerosene heaters were classifiable as “nonelectric”
domestic appliances of heading 7321, HTSUS, because the source of the heat was kerosene, notwithstanding the
heaters’ use of electricity “to control subsidiary components, such as, an ignitor, sensor or pump”).
7
The EN to heading 8516, HTSUS, reiterates the inclusion of “combined gas-electric cookers” under that heading:
“This group includes all electro-thermic machines and appliances provided they are normally used in the household.
Certain of these have been referred to in previous parts of this Explanatory Note [. . .]. Others include [. . .] (2) Other
4
The facts have established that Model 720-1054 is primarily of iron and steel, and its use
as a domestic appliance is not disputed. While the EN to heading 7321, HTSUS, does not
constrain this analysis, it is worth noting that the subject merchandise neatly tracks the note’s
guidance. Plainly, the subject outdoor grill (i) is designed to produce heat for cooking purposes;
(ii) uses propane, a gaseous fuel; and (iii) is used for domestic purposes. Thus, the first model of
the subject outdoor gas grill constitutes a “nonelectric domestic appliance” of heading 7321,
HTSUS.
II. Classification of Model 720-1055 Option C
We now address the classification of the second model, which incorporates an electric air oven.
This model cannot be classified as a “nonelectric domestic appliance” under heading 7321, HTSUS, by
application of GRI 1 because the article uses both propane gas (via the grill) and electricity (via the oven)
to heat food. This interpretation coincides with the EN to heading 7321, HTSUS, which states that the
heading “excludes appliances also using electricity for heating purposes, as in the case of combined
gas-electric cookers” of heading 8516, HTSUS, as well as the overarching function of “electrothermic”
machines as elucidated by the General EN to Chapter 85, HTSUS. Since Model 720-1055 Option C uses
electricity to heat food, and because it is used for domestic purposes, the grill is prima facie classifiable
under heading 8516, HTSUS, and prohibited from classification under Section XV, HTSUS, in
accordance with Note 1(f) to Section XVI, HTSUS.
There is no dispute that the merchandise falls under subheading 8516.60, HTSUS, which includes
“[o]ther ovens; cooking stoves, ranges, cooking plates, boiling rings, grillers and roasters.” The deciding
question, then, is whether Model 720-1055 Option C constitutes an “oven” of subheading 8516.60.40,
HTSUS. The second model consists of a “combined gas-electric” oven, and the terms of subheading
8516.60.40, HTSUS, provides for such “ovens” eo nomine. As such, NY N324250 correctly found that
this model was classifiable under subheading 8516.60.40, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject Model 720-1054 outdoor gas grill is properly
classified under heading 7321, HTSUS, specifically in subheading 7321.11.60, HTSUS, which provides
for, “Stoves, ranges, grates, cookers (including those with subsidiary boilers for central heating),
barbecues, braziers, gas rings, plate warmers and similar nonelectric domestic appliances, and parts
thereof, of iron or steel: Cooking appliances and plate warmers: For gas fuel or for both gas and other
fuels: Other: Other.” The general, column one rate of duty is free.
By application of GRIs 1 and 6, the subject Model 720-1055 Option C outdoor gas grill and
electric air oven is properly classified under heading 8516, HTSUS, specifically in subheading
8516.60.40, HTSUS, 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 ovens; cooking stoves, ranges, cooking plates, boiling rings, grillers
and roasters: Cooking stoves, ranges and ovens.” The general, column one rate of duty is free.
ovens and cookers, cooking plates, boiling rings, grillers and roasters (e.g., convection type, resistance type, infra-red,
high frequency induction and combined gas-electric appliances).” [emphasis added]
5
This ruling does not address the applicability of any additional duties that may apply to the goods
discussed herein. Likewise, duty rates are provided for your convenience and are subject to change. The
text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N324250, dated March 7, 2022, is hereby affirmed.
Sincerely,
for Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
6