CLA-2 RR:CR:GC 964803 GOB
Jason M. Waite
Jonathan M. Fee
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
RE: Barbecue Grills; Liquid propane; Portable
Dear Messrs. Waite and Fee:
This is in reply to your submissions of December 11, 2000 and November 13, 2001, on behalf of Char-Broil, a division of W.C. Bradley Co., in which you request a tariff classification ruling under the Harmonized Tariff Schedule of the United States (“HTSUS”) with respect to certain barbecue grills. We have also considered the points you raised at a conference on November 13, 2001.
FACTS:
In your submission of December 11, 2000, you describe the barbecue grills in pertinent part as follows:
. . . three models of the “Burner 4 System” backyard barbecue grills manufactured in Australia . . . The three models, numbered 4632150, 4632151, and 4632152, are substantially similar to each other . . .
The grills are made of steel and operate on liquid propane . . . Two of the subject grills weigh 176 pounds and the third, the wooden framed grill, weighs 185 pounds. These weights do not include the weight of the 19-pound liquid propane tanks with which the grills operate. The grills stand almost four feet high, have a width of over five feet, and are over two feet deep . . .
The grills . . . have a primary cooking area of 600 square inches and a secondary cooking shelf that is 135 square inches. They contain four cast iron rail burners and are capable of accommodating an optional 12,000 BTU cast iron sideburner suitable for boiling water or wok cooking. The cooking compartment of the grills is made of steel and the frame on which the grills stand is either steel or wood depending on the model. The grills are designed to operate with liquid propane stored in a 19-pound tank that attaches to the grill frame. The tanks are not imported with the grills, but the grills are sold with the tanks.
In your submission of November 13, 2001, you state in pertinent part as follows:
We request that the Stainless Steel grills [introduced by Char-Broil since the date of your original submission] be addressed in the ruling in addition to the “Burner 4 System” grills . . . The Stainless Steel grills weigh between 175 pounds and 300 pounds, not including the weight of the LP tanks by which they are fueled . . . the Stainless Steel grills are very close in size to the “Burner 4 System” grills. They stand four feet tall and have a width of approximately five feet and a depth of approximately two feet.
At our conference on November 13, 2001, you provided marketing brochures for the following Stainless Steel grills: 463-2200 (weighing 175 pounds); 463-2225 (210 pounds); 463-2230 (265 pounds); 463-2235 (188 pounds); 463-2240 (243 pounds); and 463-2245 (298 pounds). Material included with your November 13, 2001 submission indicates that model 463-2210 weighs 197 pounds and model 463-2215 weighs 228 pounds.
All of the grills at issue have castors or wheels.
You stated that the “Burner 4 System” grills retail for about $300, and the Stainless Steel grills retail for between $400 and $900.
ISSUE:
What is the classification under the HTSUS of the following Char-Broil barbecue grills – the “Burner 4 System” backyard barbecue grills, model nos. 463-2150, 463-2151, and 463-2152; and Stainless Steel grills, model nos. 463-2210, 463-2215, 463-2220, 463-2225, 463-2230, 463-2235, 463-2240 and 463-2245?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods 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’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUS provisions under consideration are as follows:
7321 Stoves, ranges . . . barbecues . . . and similar nonelectric domestic appliances, and parts thereof, of iron or steel:
Cooking appliances and plate warmers:
7321.11 For gas fuel or for both gas and other fuels:
7321.11.10 Portable
Other:
7321.11.60 Other
7321.12.00 For liquid fuel.
Your primary claim is that the subject barbecue grills are classified in subheading 7321.12.00, HTSUS. Your alternative claim is that they are classified in subheading 7321.11.60, HTSUS.
Type of Fuel
The first issue to be resolved is whether propane is a gas fuel or a liquid fuel. In accordance with 19 U.S.C. 1625(c), we published a notice in the Customs Bulletin of November 28, 2001, proposing to revoke two rulings concerning the classification of a propane camping stove and propane heaters. The core issue was whether propane is a gas or liquid fuel for classification purposes. After further consideration of the matter, it was determined to proceed with the revocations. In HQ 964976 dated January 8, 2002, we revoked DD 815332 dated November 1, 1995, and determined that a portable propane gas camping stove was classified in subheading 7321.11.10, HTSUS, based upon the finding that the stove used gas fuel, i.e., that propane is a gas fuel. In HQ 965297 dated January 8, 2002, we revoked NY 803374 dated November 9, 1994, and determined, inter alia, that certain propane heaters were classified in subheading 7321.81.10, HTSUS, as: “Stoves, ranges, grates, cookers . . . and similar nonelectric domestic appliances, and parts thereof, of iron or steel: . . . Other appliances: For gas fuel or for both gas and other fuels: Portable” or in subheading 7321.81.50, HTSUS, as: “Stoves, ranges, grates, cookers . . . and similar nonelectric domestic appliances, and parts thereof, of iron or steel: . . . Other appliances: For gas fuel or for both gas and other fuels: . . . Other.” These determinations were based upon the finding that the heaters used gas fuel, i.e., that propane is a gas fuel.
In making those determinations we cited the following authorities.
The Van Nostrand Reinhold Encyclopedia of Chemistry (4th ed., 1984) defines “propane” in pertinent part as follows: “. . . colorless gas [technical specifications omitted] . . . The content of propane in natural gas varies with the source of the natural gas, but on average is about 6%. Propane is also obtainable from petroleum sources. Liquefied propane is marketed as a fuel for outlying areas where other fuels may not be readily available and for portable cook stoves . . . Propane and other liquefied gases are clean and appropriate for most heating purposes . . .”
Hawley’s Condensed Chemical Dictionary (12th ed., 1993) defines “propane” in pertinent part as follows: “. . . Properties: Colorless gas, natural-gas odor . . . an asphyxiant gas . . . Derivation: From petroleum and natural gas.”
The Random House Dictionary of the English Language (unabridged ed., 1973) defines propane as follows: “a colorless, flammable gas [symbol omitted] of the alkane series, occurring in petroleum and natural gas: used chiefly as a fuel and in organic synthesis. Also called dimethylmethane.”
We concluded from these authorities that propane is a gas, and not a liquid.
The HTSUS classifies propane in subheading 2711.12.00, HTSUS, as: “Petroleum gases and other gaseous hydrocarbons: Liquefied: . . . Propane.” We interpret that classification to the effect that propane is a liquefied gas. EN 27.11 provides in pertinent part: “This heading covers crude gaseous hydrocarbons obtained as natural gases or from petroleum, or produced chemically. Methane and propane are, however, included even when pure. These hydrocarbons are gaseous at a temperature of 15 degrees C and under a pressure of 1,013 millibars (101.3 kPa). They may be presented under pressure as liquids in metal containers and are often treated, as a safety measure, by the addition of small quantities of highly odiferous substances to indicate leaks. They include, in particular, the following gases, whether or not liquefied: (1) Methane and propane, whether or not pure . . . “ [Emphasis in original.] We interpreted that language of the EN to the effect that propane is a gas.
Our findings in HQ 964976 and HQ 965297 are determinative on this issue. Therefore, we find that the subject barbecue grills are for gas fuel. Accordingly, they are described in subheading 7321.11, HTSUS.
Portability
The second issue to be resolved in this ruling is whether or not the subject barbecue grills are portable, i.e., whether they are classified in subheading 7321.11.10, HTSUS, or subheading 7321.11.60, HTSUS.
“Portable” is not defined in the statute. In the absence of definitions in the statute, the courts have referred to other sources, including dictionary definitions. Our research has found two cases (albeit involving different merchandise) where the court has cited dictionary definitions of “portable” - Neco Electrical Products v. United States, 14 CIT 181, 184 (1990) and United Import Sales, Inc. v. United States, 66 Cust. Ct. 355, 360 (1971). The courts in those cases used certain of the same dictionaries which we use below.
Webster’s Third New International Dictionary (unabridged ed.; 1986) defines “portable” as: “1 : capable of being carried : easily or conveniently transported : light or manageable enough to be readily moved (a --- grill) (a --- power drill). “ The Compact Edition of the Oxford English Dictionary (1987) defines “portable” as: “1. Capable of being carried by hand or on the person; capable of being moved from place to place; easily carried or conveyed . . . “ The Random House Dictionary of the English Language (unabridged ed.; 1973) defines “portable” as: “1. Capable of being transported or conveyed; a portable stage. 2. Easily carried or conveyed by hand: a portable typewriter . . . “ Merriam-Webster OnLine (http://www.m-w.com/cgi-bin/dictionary; January 4, 2001) defines portable as: “1 a : capable of being carried or moved about [a portable TV] . . . “
Most of these definitions include more than one “concept” with respect to the meaning of “portable.” While the subject grills can be moved, via their wheels, from place to place on one’s patio or lawn, because of their size and weight, they are not “easily carried or conveyed by hand” or “capable of being carried by hand or on the person.”
The definitions do not resolve the issue in that the subject barbecue grills are “capable of being moved from place to place,” but are not “capable of being carried by hand or on the person.”
In F.W. Myers, Inc. v. United States, 12 CIT 566, 571 (1988), where the court found that dictionary and encyclopedia sources did not resolve its inquiry, it stated:
When a word has both broad and narrow common meaning, it is proper to refer to the legislative history, administrative practice, sections related to those in which the term appeared, and other “external aids.” Sears Roebuck & Co. v. United States, 26 CCPA 161, 167, C.A.D. 11 (1938) (citing Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 317-19 (1933)).
EN 85.13 (portable electric lamps) provides in pertinent part as follows:
The term “portable lamps” refers only to those lamps (i.e., both the lamp and its electricity supply) which are designed for use when carried in the hand or on the person. They usually have a handle or fastening device and may be recognised by their particular light weight. [Emphasis in original.]
While such language from EN 85.13 cannot limit legal terms within heading 7321, HTSUS, it is in line with the “narrow” definition of “portable,” i.e., “capable of being carried by hand or on the person.”
You furnished us with a letter dated November 16, 2001, from a spokesperson for the Barbecue Industry Association in which she states in pertinent part:
I have also reviewed the literature and product details you provided us about Char-Broil’s Stainless Steel line of barbecue grills, model numbers 463-2210 through 463-2240.
These grills are not the type that are considered by the industry to be portable grills. They are commercially recognized as being for relatively fixed patio use. In fact, they are much too big and heavy to be marketed as portable grills. Rather, there is a separate class of grills that the trade considers portable because they are designed to take along for tailgating, going to the beach, camping or other away-from-home activities. Portables traditionally have few features or amenities other than a simple cooking grid, which is much smaller than that of a typical backyard grill.
This letter is consistent with our belief that barbecue grills of the size and weight of the subject grills are generally not marketed as “portable.”
With respect to the definitions of “portable” cited above, we note that they mention a portable power drill, a portable stage, a portable typewriter and a portable television (in addition to a portable grill). While the definitions do not elaborate on these terms, it is our belief that a portable power drill, a portable typewriter and a portable television are all typically materially smaller in size and easier to carry than the subject barbecue grills. We believe that these three items can typically be carried in two hands (and in some cases, in one hand, e.g., a power drill, a small television with a handle or a very small television without a handle). We believe that a large television (e.g., 24 to 26 inches), which is typically not referred to as portable, may be considered as similar in size and ease of movement to the subject grills.
After a careful consideration of the portability issue, we conclude that the subject barbecue grills are not portable grills. As stated above, they are not “easily carried or conveyed by hand.” Further, we believe that the subject barbecue grills are not of the class or kind of article normally considered as portable. We believe that barbecue grills of the size of the current grills are generally not marketed as portable.
Therefore, we find that they are classified in subheading 7321.11.60, HTSUS, as: “Stoves, ranges . . . barbecues . . . 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.”
HOLDING:
The subject Char-Broil barbecue grills (the “Burner 4 System” backyard barbecue grills, model nos. 463-2150, 463-2151, and 463-2152; and Stainless Steel grills, model nos. 463-2210, 463-2215, 463-2220, 463-2225, 463-2230, 463-2235, 463-2240 and 463-2245) are classified in
subheading 7321.11.60, HTSUS, as: “Stoves, ranges . . . barbecues . . . 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.”
Sincerely,
John Durant, Director
Commercial Rulings Division