CLA-2 RR:TC:MM 959485 JAS
Port Director of Customs
6747 Engle Road
Middleburg Heights, OH 44130-7939
RE: PRD 4101-96-100224; Smokehouse Used in Meat Processing Plant; Steam Heated Oven Suitable for Hot and Cold Smoking, Cooking and Drying; Machinery for the Treatment of Materials
by a Process Involving a Change of Temperature, Heading 8419; Stella D'Oro Biscuit Co. v. U.S., F.L. Smidth & Company v. U.S., HQ 959379, HQ 959754
Dear Port Director:
This is our decision on Protest 4101-96-100224, filed
against your classification of a smokehouse from Germany. The
entry was liquidated on January 12, 1996, and this protest timely
filed on April 10, 1996. In preparing this decision,
consideration was given to a supplemental submission from counsel
for the protestant, dated May 31, 1996.
FACTS:
The merchandise in issue is described as a steam-operated
commercial oven used in large scale production of meat products
such as sausage, pepperoni, prosciuto, etc. It is designed to
operate at temperatures ranging from 70 degrees to 200 degrees
Fahrenheit and is used in heating, cooking, roasting,
evaporating, steaming, drying and cooling applications.
The oven was entered under a duty-free provision in heading
8419, Harmonized Tariff Schedule of the United States (HTSUS),
for other cooking stoves, ranges and ovens which are machinery,
whether or not electrically heated, for the treatment of
materials by a process involving a change of temperature. You
determined that the smokehouse was more appropriately described
by the terms of HTS heading 8417, as an industrial oven.
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The heading 8419 claim advanced by counsel for the
protestant is based on the assertion that notwithstanding the
principal function of the smokehouse is to heat/cook foods
because it is designed to maintain a temperature of between 50
and 200 degrees Fahrenheit (10 to 93 degrees Celsius), the unit
also has the capability of completing the processing of food in
the chamber by cooling at temperatures at or near freezing (32
degrees F). This is not a function appropriate to industrial
ovens of heading 8417. Counsel maintains that the smokehouse is
described both by the terms of heading 8417 and the terms of
heading 8419, and that the apparatus operates at temperatures
much lower than those required for goods of heading 8417.
The provisions under consideration are as follows:
8417 Industrial or laboratory furnaces and ovens, including incinerators, nonelectric, and parts thereof:
8417.80.00 Other...the 1995 rate of duty
* * * *
8419 Machinery...whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting...other than of a kind used for domestic purposes...:
8419.81 Other machinery, plant or equipment:
8419.81.50 Other cooking stoves, ranges and ovens...Free
ISSUE:
Whether the smokehouse, as described, is an industrial oven
for tariff purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined - 3 -
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
The ENs at p. 1173 exclude the following from heading
84.19: (g) Industrial or laboratory furnaces and ovens, including
those for the separation of irradiated nuclear fuel by
pyrometallurgical processes (heading 84.17 or 85.14, as the case
may be). ENs at p. 1168 state only that heading 84.17 covers
non-electrical industrial or laboratory furnaces and ovens,
designed for the production of heat in chambers at high or fairly
high temperatures by the combustion of fuel. Specific operating
temperatures or a range of temperatures are not indicated. While
these notes are not helpful in clarifying the scope of heading
8417, it is clear that the provision for furnaces and ovens is to
take precedence over a less specific provision for other
machinery, plant or equipment. This conclusion was first stated
in Stella D'Oro Biscuit Co. v. United States, 79 Cust. Ct. 28,
C.D. 4709 (1977), with respect to identical provisions under the
Tariff Schedules of the United States, the HTSUS predecessor
tariff code.
For purposes of heading 8417, the terms "furnace" and "oven"
are not defined in the text of the HTSUS or in the ENS. In such
cases tariff terms are to be determined in accordance with their
common and commercial meanings, which are presumed to be the
same. Circumscribed only by the requirements that they be
industry or laboratory types and nonelectric, an oven is a heated
chamber or other enclosure used for baking, heating, drying or
hardening. See F.L. Smidth & Company v. United States, 59 Cust.
Ct. 276, C.D. 3141 (1967), in which the Customs Court established
the common meaning of the term "oven" and determined that a kiln
was within this common meaning. See HQ 959379, dated August 20,
1996, aff'd. by HQ 959754, dated October 10, 1996.
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HOLDING:
Under the authority of GRI 1, the smokehouse is provided for
in heading 8417. It is classifiable in subheading 8417.80.00.
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division