OT:RR:CTF:EMAIN H321189 NVF
U.S. Customs and Border Protection
Port of Houston
2350 N. Sam Houston Parkway East
Houston, TX 77032
Attn: Konika Bradford, Import Specialist, Consumer Products and Mass Merchandising Center
RE: Request for Internal Advice on Classification of an Air Fryer
Dear Port Director:
This is in response to a request for internal advice, dated August 25, 2021, concerning the proper classification of a Sensio Air Fryer. The request was filed by counsel on behalf of Sensio Inc. (“Sensio”).
FACTS:
The subject air fryer is a countertop cooking device stated to be intended for household use. It contains heating elements and a high-speed fan, which circulates hot air within a cooking chamber. Food is placed in a basket inside the cooking chamber and is cooked by the circulating hot air. Unlike a traditional deep fryer, this air fryer does not use submerge food in hot oil to achieve a crisp exterior.
In Sensio’s request for internal advice, they do not dispute that the air fryer is classified as an electrothermic appliance of heading 8516, HTSUS. Rather, they argue that the air fryer is not an oven of subheading 8516.60.40, but should be classified under subheading 8516.79.00, HTSUS. As justification for their argument, Sensio asserts that the subject air fryer uses air as a fluid to cook food and that in addition to frying, the air fryer can also steam, sauté, bake, and roast food. Sensio asserts that the air fryer does “not operate solely by drying or heating objects placed in the cooking chamber” and because some oil is absorbed into the cooked food, it is therefore fried and not baked. Sensio concludes that because frying is not done in an oven, the subject air fryer therefore cannot be classified as an oven of subheading 8516.60.40.
ISSUE:
Whether the subject air fryer is classified as an oven under subheading 8516.60.40, HTSUS, or as an other electrothermic appliance under subheading 8516.79.00, HTSUS.
LAW AND ANALYSIS:
The HTSUS provisions under consideration are as follows:
8516.60 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:
8516.60.40 Cooking stoves, ranges and ovens.
8516.60.60 Other.
Classification of goods under the HTSUS 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 GRIs 2 through 6 may then be applied in order.
Since there is no disagreement that the subject air fryer is classifiable under heading 8516, HTSUS, the instant matter is governed by GRI 6, which states 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 the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
We have consistently classified air fryers under subheading 8516.60.40, HTSUS. E.g. NY N268809 (Oct. 8, 2015) (Air fryer with recipe book); NY N281843 (Dec. 30, 2016) (Cuisinart air fryer); NY N301597 (Nov. 20, 2018) (7.2 quart air fryer). Subheading 8516.60.40 provides for cooking stoves, ranges, and ovens. The term, “oven” is not defined in either the HTSUS or the The Explanatory Notes of the Harmonized Commodity Description Coding System (“ENs”), which constitute the official interpretation of the Harmonized System. We therefore look to its common and commercial meaning. See Nippon Kogasku (USA) Inc. v. United States, 69 C.C.P.A. 89, 92-93 (1982); C.J. Towers & Sons v. United States, 69 C.C.P.A. 128, 133-134 (1982). This office has previously stated that:
In examining the common meaning of the term, we find that “oven” is broadly defined in the Merriam-Webster's Collegiate Dictionary, 10th Edition, p. 827 (1999), as: "a chamber used for baking, heating, or drying.” In HQ 956227, dated September 19, 1994, Customs relied upon a similar definition provided in Webster’s II New Riverside University Dictionary, p. 837 (1984), that an oven is “[a]n enclosed compartment supplied with heat and used for cooking food and for heating or drying objects placed within.”
HQ 963678 (Sep. 11, 2000).
In addition to standard kitchen ovens that use static heat to cook food, we have a longstanding practice of classifying convection ovens in subheading 8516.60.40, HTSUS. NY 883465 (Mar. 11, 1993) (portable convection oven using super-heated forced air); NY 877291 (Aug. 14, 1999) (countertop cooking device which operates by blowing heated air over food which is confined in a glass chamber); NY N065887 (June 30, 2009). Without exception, these convection ovens cook food by blowing super-heated forced air within a chamber over and around the food item.
Contrary to Sensio’s claim that “air frying” is a form of frying and therefore distinct from cooking in an oven, we observe that in 1991, we classified a “Jet-Stream” convection oven, which was capable of air frying, among other functions. HQ 087064 (Aug. 5, 1991). The device at issue used super-heated forced air to cook food. We agreed with the protestant in HQ 087064 that a cooking device capable of air frying is properly classified under subheading 8516.60.40, HTSUS as an oven. In doing so, we noted that Simmon Omega, Inc. v. United States, 83 Cust. Ct. 14 (1979), established the fundamental tariff classification principle that Congress did not intend to foreclose the classification of future innovations in tariff provisions.
Indeed, the courts have long held that technological advancements and "improvement in the design of an article does not militate against its continuing to be a form of the named articles." Trans-Atlantic Co. v. United States, 67 Cust. Ct. 296, 299 (1971). Therefore, an article, “which has been improved or amplified but whose essential characteristic is preserved or only incidentally altered is not excluded from an unlimited eo nomine statutory designation.” Casio, Inc. v. United States, 73 F.3d 1095, 1098 (Fed. Cir. 1996). The courts have instructed us to consider whether an item “possesses features substantially in excess of those within the common meaning of the term.” Id.
Sensio does not challenge our classification of convection ovens in subheading 8516.60.40, HTSUS. Rather, Sensio asserts that its air fryer is able to “fry” food and therefore should not be classified under the provision for “ovens”.
The issue at hand is whether the subject air fryer possesses features substantially in excess of ovens to fall outside the scope of subheading 8516.60.40, HTSUS. In examining information on the record and in the public domain, we are not convinced that the subject air fryer is sufficiently different from a convection oven to overcome this hurdle. The subject air fryer cooks food in virtually the same manner as a convection oven. Both utilize fans to blow hot air over food until the desired result is obtained.
Our findings comport with the common and commercial understanding of the term “ovens” as it relates to air fryers generally. Frigidaire, a manufacturer of home kitchen appliances, has incorporated an air frying feature into some of its ovens. In describing this feature, Frigidaire states that “air frying is a method of cooking that circulates hot air inside your oven at high speed through the use of convection fans.” Similarly, a review of various articles concerning air frying reveals that the consensus is that air fryers are merely convection ovens that use more intense heat and air movement. Virtually all articles mention that the resulting texture of a food item cooked in an air fryer varies widely depending on a multitude of factors, and in many cases the same effect or better can be achieved with a convection oven. In one article, “Are Air Fryers Worth It?” the author engages in various air frying experiments and concludes:
What is it that makes air fryers unique? The answer might be, “Nothing, really.” Air fryers are convection ovens in a bucket, meaning that like a regular oven, they have a heating element and like a slightly fancier oven with a convection feature, they have a fan that circulates the hot air, keeping the temperature consistent throughout the cooking area. Thanks to faster-than-a-normal oven heat transfer capabilities from that rapidly circulating air, convection ovens can shorten the cooking time of some foods, potentially giving them a crispier exterior that brand-conscious marketeers seem to consider to be similar to fried food.
In light of these factors, we find that the subject air fryer does not possess features substantially in excess of a convection oven. Therefore, the subject air fryer is classified as an oven under subheading 8516.60.40, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject air fryer is 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.” The column one, general rate of duty is free.
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 on the internet at www.usitc.gov/tata/hts/.
You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division