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HQ H003368




June 28, 2007

CLA-2: RR:CTF:TCM H003368 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8438.80.0000

Port Director
U.S. Customs and Border Protection
610 South Canal Street
Chicago, IL 60607

RE: Application for Further Review of Protest 3901-06-100754

Dear Port Director:

This is in reply to your correspondence dated November 9, 2006, forwarding Application for Further Review of Protest (AFR) 3901-06-100754, filed by Deloitte Tax LLP on behalf of its client, Weber, Inc.

The protest is against Customs and Border Protection’s (CBP) classification and liquidation of six entries food slicers under subheading 8438.50.0090 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

Between February 23, 2005 and June 2, 2005, protestant entered the merchandise subject to this protest in subheading 8438.80.0000, HTSUSA, which provides for “Machinery not elsewhere specified or included elsewhere in this chapter, for the industrial preparation o manufacture of food or drink, other than machinery for the extraction or preparation of animal or fixed vegetable fats or oils, parts thereof: Other machinery.” The merchandise was liquidated between December 30, 2005 and April 7, 2006 in subheading 8438.50.0090, HTSUSA, which provides for “Machinery not elsewhere specified or included elsewhere in this chapter, for the industrial preparation o manufacture of food or drink, other than machinery for the extraction or preparation of animal or fixed vegetable fats or oils, parts thereof: Machinery for the preparation of meat or poultry, Other.”

On June 16, 2006, protestant filed a protest and application for further review against the classification and liquidation of the merchandise in subheading 8438.50.0090, HTSUSA. Protestant’s AFR request was approved. The protest was timely filed for those entries liquidated between March 3, 2006 and April 7, 2006. Entries liquidated on December 30, 2005 and January 13, 2006 were protested outside the 180 day time frame for filing a protest pursuant to 19 U.S.C. 1514 (c)(3). Thus, they are barred from review.

In support of protestant’s application for further review, protestant alleges that the protest is inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, protestant cites to New York Ruling Letters (NY) 859074, dated January 24, 1991; NY K85991, dated May 27, 2004 and; Headquarters Ruling Letter (HQ) 967158, dated September 3, 2004. Further review is warranted pursuant to 19 CFR §§174.24(b) and 174.25.

FACTS:

The merchandise at issue consists of four different series of food slicing machines: the 300, 400, 600 and 900 series. The food slicers all operate in the same manner. Unsliced meat and cheese products ready for human consumption are fed into the machine through a tiled loading tray. The meat and cheese products travel down a conveyor that can be adjusted to send the products to a variety of sorting stations. The sliced meat and cheese is then packaged and shipped for retail distribution to grocery stores, delicatessens, etc.

ISSUE:

Whether the food slicers are classified in subheading 8438.50, HTSUSA, as “Machinery for the preparation of meat and poultry” or in subheading 8438.80, HTSUSA, as “Other machinery.”

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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 may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

EN (VII) to heading 84.38 covers the machinery classified in subheading 8438.50, HTSUS. This EN reads, in full:

(VII) MACHINERY FOR THE PREPARATION OF MEAT OR POULTRY

This group includes:
(1) Machinery for the slaughter and subsequent treatment of animals. (2) Hog de-hairing machines. These consist of a revolving cradle which holds the carcass, and of a number of belt scrapers turning in the opposite direction to the cradle. (3) Meat cutting or chopping machines for cutting up carcasses, etc., by the action of circular saws, rotating knives, etc. (4) Machines for sawing or chopping bones. (5) Meat beating machines to make the flesh more tender by the action of pointed or bladed combs which sever the nerve fibres. (6) Meat mincing or dicing machines.
(7) Gut cleaning machines.
(8) Sausage stuffing machines. These consist essentially of a cylindrical container from which the meat is forced by a piston into the sausage casing. (9) Meat or bacon slicing machines.
(10) Meat or fat moulding presses.
(11) Machines and appliances for killing, plucking or drawing poultry (electric stunning and bleeding knife, high-output poultry pluckers, eviscerating apparatus, gizzard strippers and lung extractors). (12) Meat pickling machinery comprising hand-operated brine injection guns connected to a pump, or a fully automatic conveyor device which feeds the meat to a grid consisting of brine injection needles.

EN (X) to heading 84.38 covers the machinery classified in subheading 8438.80, HTSUS. This EN reads, in full:

(X) OTHER MACHINERY FOR THE INDUSTRIAL PREPARATION

OR MANUFACTURE OF FOOD OR DRINK

This group includes:
(1) Mechanical appliances for acetification (used in vinegar-making). (2) Coffee bean husking or hulling machines (cylinder, disc or blade types). (3) Extracting machines, of the spiked roller type, for extracting the essential oil from oranges. (4) Tea-leaf cutting or rolling machines.

While EN (VII) to heading 84.38 covers a wide array of machinery for the preparation of meat or poultry, we do not find that the scope of the heading is broad enough to cover the food slicers as the food slicers are not designed to be principally used for the preparation of meat or poultry. Protestant has established that the four models are commercial food slicing machines used for unsliced meat and cheese products. The most similar machinery covered by EN (VII) is “meat or bacon slicing machines.” We do not find that the food slicers are machines of this nature. The food slicers are not designed to be principally used for the preparation of meat or poultry. Rather, the machines are designed to be used with cheeses, and meats.

While general commercial food slicing machines are not explicitly named in EN (X) to heading 84.38, we find the food slicers are clearly machines for the industrial preparation of food not specifically described under another subheading under heading 8438, HTSUSA. Therefore, we find subheading 8438.80, HTSUSA, which provides for “Other machinery,” to be the most suitable provision for the food slicers. Note that we have previously classified substantially similar general purpose commercial food slicers in this provision (See NY 859704, dated January 24, 1991, NY K85991, dated May 27, 2004 and HQ 967158, dated September 3, 2004).

HOLDING:

Protest number 3901-06-100754 is granted in full. The food slicers are classified in heading 8438, HTSUSA. They are provided for in subheading 8438.50.0090 HTSUSA, which provides for “Machinery not elsewhere specified or included elsewhere in this chapter, for the industrial preparation o manufacture of food or drink, other than machinery for the extraction or preparation of animal or fixed vegetable fats or oils, parts thereof: Other machinery.” The rate of duty is free.

In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), you are to 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 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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