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HQ 967090




August 3, 2004

CLA-2: RR:CR:TE: 967090 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 7321.11.6000

Lars-Erik A. Hjelm, Esq.
Jason A. Park, Esq.
Akin Gump Strauss Hauer & Feld LLP
Robert S. Strauss Building
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036-1564

RE: Revocation of NY G85307 regarding the tariff classification of gas barbecues from China

Dear Mssrs. Hjelm and Park:

This is in response to your letter dated April 14, 2004, on behalf of Meco Corporation, requesting reconsideration of New York Ruling Letter (NY) G85307, dated December 15, 2000, regarding the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of three models of heavy-duty propane gas grills in the Aussie Line, these being the Bonza 2 (“Bonza 2”), Bonza 3 (“Bonza 3”), and Bonza 4 (“Bonza 4”). In this response, the three models will be collectively referred to as the “Bonza Grills.”

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY G85307, as described below, was published in the Customs Bulletin, Volume 38, Number 27, on June 30, 2004. CBP received no comments during the notice and comment period that closed on July 30, 2004.

FACTS:

The Bonza 2 is the smallest of the Bonza Grills, measuring approximately 49 x 25 x 43 inches and weighing 120 pounds. It has two burners that burn at 24,000 BTUs per hour and has 488 square inches of cooking area. The Bonza 3 is the intermediate size of the Bonza Grills, measuring approximately 59 x 26 x 43 inches and weighing 147 pounds. It has three burners that burn at 36,000 BTUs per hour and has 662 square inches of cooking area. The Bonza 4 is the largest of the Bonza Grills, measuring approximately 64 x 26 x 43 inches and weighing 174 pounds. It has four burners that burn at 48,000 BTUs per hour and has 815 square inches of cooking area. The bodies of the Bonza Grills are made of enameled steel, are pre-assembled, and are not designed to be taken apart for transport. The Bonza Grills also feature a porcelain-coated steel hood and bowl, cast iron grids and burners, a matchless ignition system, a built-in heat indicator, an easy-clean drip pan, and a polyurethane-coated hardwood cart with wheels. They are pre-assembled before importation. The Bonza Grills operate on propane gas and require a propane-cylinder weighing approximately 20 pounds that is sold separately.

In NY G85307, the Bonza Grills were classified under subheading 7321.11.1060, HTSUSA, 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: Portable, Other.”

ISSUE:

Whether the Bonza Grills are classifiable under subheading 7321.11.1060, HTSUSA, or under subheading 7321.11.6000, HTSUSA, 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.”

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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 of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Propane has been held to be a gas fuel for classification purposes (See HQ 964976, dated January 8, 2002, HQ 965297, dated January 8, 2002, and HQ 964803, dated January 10, 2002). As the Bonza Grills are barbecue grills that operate on propane, they are classifiable pursuant to GRI 1 under subheading 7321.11, HTSUSA, 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.” Whether the Bonza Grills are classifiable under subheading 7321.11.1060, HTSUSA, or 7321.11.6000, HTSUSA, depends solely on whether the grills are portable.

In HQ 964803, we discussed the portability of barbecue grills. The eleven grill models at issue in that ruling weighed between 175 and 300 pounds (without propane tanks) and had cooking compartments of steel, and frames constructed of steel, stainless steel, or steel and wood. Each of the grills operated with liquid propane and required that a tank be attached for use. The grills were approximately 4 feet tall, five feet wide and two feet deep. The grills had approximately 735 square inches of cooking space. We found that these grill models were not “easily carried or conveyed by hand” and “not of the class or kind of article normally considered as portable” and ruled that they were classified under subheading 7321.11.60, HTSUSA.

Like the models in HQ 964803, we find that the Bonza Grills are not portable. The Bonza Grills are not considered by the industry to be portable and are designed for relatively fixed patio use. Marketing material explicitly states that a purpose of the Bonza Grills is to “serve as a centerpiece for the backyard patio.” While the grills’ hardwood cart with wheels may enable the grill to be rolled around the patio or yard, the wheels were not designed to and do not make the grills portable. While the Bonza Grills are generally smaller than the models in 964803, we find that the Bonza Grills are also too big and heavy to be carried by hand and are not designed to be transported for away-from-home activities. Just transporting the Bonza 2, the smallest of the Bonza Grills, would be an arduous task considering its dimensions and its weight of 120 pounds. Furthermore, the grills have considerably more features than grills normally considered to be portable, including hardwood carts, ignition systems, built-in heat indicators, etc. We find that the three Bonza models are classified in subheading 7321.11.6000, HTSUSA.

HOLDING:

NY G85307, dated December 15, 2000, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

The Bonza Grills identified by model numbers 2, 3, and 4 are classified in subheading 7321.11.6000, HTSUSA, 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.” Under the 2004 HTSUSA, merchandise classified in subheading 7321.11.6000, HTSUSA, has a “free” rate of duty.

Sincerely,

Myles B. Harmon, Director

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