CLA-2 CO:R:C:M 953619 RFA
Mr. Samuel Zekser
Sobel Shipping Co., Inc.
170 Broadway
Suite 1501
New York, NY 10038-4184
RE: Grill Express; electric grill; electric oven; EN 85.16; sets
put up for retail sale; GRI 3(b); essential character; ENs
VIII and X to GRI 3(b)
Dear Mr. Zekser:
In a letter dated February 24, 1993, to the Regional
Commissioner of Customs in New York, you inquired as to the
tariff classification of the Grill Express under the Harmonized
Tariff Schedule of the United States (HTSUS). Your letter and
sample were referred to this office for a direct response.
FACTS:
The merchandise, labeled as a Grill Express, is an electro-
thermic cooking device with a hinged cover, locking knob and
timer. Inside the plastic casing are two non-stick surface
heating plates, measuring 9 inches in length by 6 inches in
width. The upper heating plate moves by use of a spring in order
to adjust to the thickness of the food which is grilled. On top
of the casing are an on/off power switch and the timer slide knob
which is used to set the length of time the Grill Express will
cook the food. The Grill Express also has a latch to keep the
cover closed while cooking and an A.C. cord which is plugged into
a household 110 volt outlet. The Express Grill is capable of
grilling chicken, pork, shrimp, lamb, steak, and vegetables.
The Grill Express also comes with a plastic beaker for
accurate water measurement which is required in order to use the
Grill Express. A special cleaning utensil for the non-stick
surface heating plates, made of plastic, is also included. In
addition to the instructions manual, a videotape is included
which demonstrates how to properly use the Grill Express.
ISSUE:
Is the Grill Express classifiable as an oven or as a griller
under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
There is no dispute that the Grill Express is provided for
in heading 8516, HTSUS, as other ovens and grillers. In your
letter, you indicate that although the merchandise is called a
grill, it only "captures the taste and appearance of grilling" by
cooking with moist heat in a sealed chamber. Unlike a grill, the
subject merchandise can cook a steak in 1.5 minutes. You argue
that the merchandise merely simulates grilling, but its function
and design is more like an oven and, therefore, should be
classified under subheading 8516.60.40, HTSUS, as other ovens.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS. While not
legally binding, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the
proper interpretation of these headings. EN 85.16, page 1359,
states that other electro-thermic appliances used for domestic
purposes include "other ovens and cookers, cooking plates,
boiling rings, grillers and roasters. . ." EN 85.16 does not
provide direction as to what characterizes "other ovens" and
"grillers".
When a tariff term is not defined in the HTSUS or in the
EN's, then it is construed in accordance with its common and
commercial meaning. Nippon Kogasku (USA) Inc. v. United States,
69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning
may be determined by consulting dictionaries, lexicons,
scientific authorities and other reliable sources. C.J. Tower &
Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
Webster's New Riverside Dictionary, page 837, defines "oven" as:
"[a]n enclosed compartment supplied with heat and used for
cooking food and for heating or drying objects placed within."
Webster's defines "grill", page 548, as: "A cooking utensil with
parallel metal bars: gridiron." A "gridiron" is a "flat
framework of parallel metal bars for broiling meat or fish."
According to the brochure, videotape and packaging, the
merchandise, labeled as a Grill Express, allows the user to:
"capture the taste and appearance of grilling"; grill meats,
poultry, fish and vegetables to perfection; keep food moist and
taste delicious because none of the nutrients or juices are lost
in the grilling. Furthermore, both of the heating plates have
parallel metal bars to give the food that grilled-seared look.
Based upon the definition of "grill" and "gridiron" and from all
of the merchandise's supporting information, we find that the
item is commonly and commercially known and sold as a grill. The
Grill Express is classifiable under subheading 8516.60.60, HTSUS,
as other grillers.
However, the Grill Express is considered part of a set which
includes the plastic water beaker, plastic cleaning utensil, and
the instructional videotape. Each item in the set is prima facie
classifiable within two or more headings. Both the plastic water
beaker and the plastic cleaning utensil are provided for in
heading 3924, HTSUS. The instructional videotape is provided for
in heading 8524, HTSUS.
GRI 3(a) states that if a product is classifiable in two or
more headings by application of GRI 2(b), or for any other
reason, then the
heading which provides the most specific description
shall be preferred to headings providing a more general
description. However, when two or more headings each
refer to part only of the materials or substances
contained in mixed or composite goods or to part only
of the items in a set put up for retail sale, those
headings are to be regarded as equally specific in
relation to those goods, even if one of them gives a
more complete or precise description of the goods.
GRI 3(b) provides that "goods put up in sets for retail
sale, which cannot be classified by reference to 3(a), shall be
classified as if they consisted of the material or component
which gives them their essential character."
To determine what is a "set put up for retail sale", EN X to
GRI 3(b), page 4, states
[f]or the purposes of this Rule, the term "goods put up
in sets for retail sale" shall be taken to mean goods
which:
(a) consist of at least two different articles which
are, prima facie, classifiable in different
headings;
(b) consist of products or articles put up together to
meet a particular need or carry out a specific
activity; and
(c) are put up in a manner suitable for sale directly
to users without repacking (e.g., in boxes or
cases or on boards).
The subject merchandise is a set, because: the items in it are
provided for in headings 3924, 8516, and 8524, HTSUS; all of the
products put together carry out the specific activity of grilling
food; and it is packaged in one box to be sold directly to the
user.
Because the item is a set, we must determine which component
provides the essential character. Based upon examination, it is
clear that the essential character of the set is imparted by the
griller. Therefore, we find that the set which constitutes the
Grill Express is classifiable within subheading 8516.60.60,
HTSUS.
HOLDING:
The Express Grill is classifiable under subheading
8516.60.60, HTSUS, which provides for: "[o]ther ovens; cooking
stoves, ranges cooking plates, boiling rings, grillers and
roasters: [o]ther. . ." The general, column one rate of duty is
5.3 percent ad valorem.
Sincerely,
John Durant, Director