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HQ 966949




MAY 18, 2004

CLA-2 RR:CR:GC 966949 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8419.81.90

William L. Griffin Company
7830 12th Ave. South
Minneapolis, MN 55425

RE: VEMAG Aeromat, Smoker/Cooker for Industrial Preparation of Meat Products; HQ 959217 Revoked

Dear Sirs:

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 revocation of HQ 959217 was published on April 7, 2004, in the Customs Bulletin, Volume 38, Number 15. No comments were received in response to that notice. As previously stated, HQ 959217 represents the denial of Protest 3501-95-100086, which you filed with the Port Director of Customs, Minneapolis, MN, on behalf of Robert Reiser Company, Inc., Canton, MA. Any liquidation or reliquidation of the entry or entries in this protest will not be affected by this ruling, which sets forth the correct classification.

FACTS:

As described in HQ 959217, the VEMAG Aeromat, is a combined hot smoker/cooker used in the industrial preparation of turkey and other poultry meats. Submitted literature describes a walk-in chamber with sides, roof and door of polyurethane insulated base metal, and a chromium-nickel steel sheet floor. Utilizing a humidifier and air circulating fan with a range of between 10 degrees Celcius above ambient temperature and 95 degrees C, the apparatus heats the meat by means of steam passing through a heat exchanger. Apparatus of this type can also be equipped with a resistance heater powered by an electric current, but this type is not the subject of this protest. The

VEMAG Aeromat is advertised for use in redding (browning), drying, smoking, boiling, spraying or hot air cooking, all in one operation. An optional heating system, that does not appear to be a part of this importation, permits baking at temperatures up to 140 degrees Celcius.

The provisions under consideration are as follows:

8417 Industrial or laboratory furnaces and ovens, including incinerators, nonelectric, and parts thereof:

8417.80.00 Other

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

8419.81.90 Other

ISSUE:

Whether the VEMAG Aeromat is a furnace or oven of heading 8417.

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 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 at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS 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).

HQ 959217 stated that the 8417 ENs were not helpful in clarifying the scope of that heading. It was further stated that the Aeromat appeared substantially similar to a kiln which was encompassed within the common and commercial meanings of the terms “furnace” and “oven” for tariff purposes. Thus, the conclusion followed that the Aeromat was also described by heading 8417. However, we note that the 8417 ENs do not distinguish between wet and dry heat, nor do they list operating temperatures for ovens of that heading. In addition, new and more precise sources of information now available to us indicates that as a class or kind smokehouses generally heat/cook using dry heat and wet heat produced by an external source of steam. The latter produces humidity which is necessary for fermentation, a curing process that liberates a culture which induces a chemical reaction in the meat. This appears to be part of the cooking process. Additionally, these sources also indicate that the term “oven” is restricted to apparatus that heat/cook using only dry heat. Upon careful consideration of all the available evidence, it now appears that the VERMAG Aeromat is not an oven, either under heading 8417 or heading 8419, but is other machinery of 8419.

HOLDING:

Under the authority of GRI 1, the VEMAG Aeromat is provided for in heading 8419. It is classifiable in subheading 8419.81.9080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The current rate of duty under this provision 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 World Wide Web at www.usitc.gov. HQ 959217, dated August 15, 1996, is revoked.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director


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