CLA-2 CO:R:C:M 952103 AJS

District Director
U.S. Customs Service
Second and Chestnut Sts
Suite 102
Philadelphia, PA 19106

RE: Internal Advice; 19 CFR 177.1; 19 CFR 177.11; Rack and deck ovens; industrial; HQ 088303; Heading 8514; Heading 8417; Heading 8516; Heading 7321; U.S. Precise Imports Corp.; Amersham Corp. v. U.S.; Stella D'Oro Biscuit Co., v. U.S.

Dear Sir:

This is in reply to a request of June 23, 1992, submitted by Kuehne & Nagel on behalf of Gemini Bakery regarding the tariff classification of various ovens under the Harmonized Tariff Schedule of the United States (HTSUS). Kuehne & Nagel originally requested a binding ruling on the ovens, but we discovered through the National Import Specialists (NIS) for this commodity that this request involved ongoing transactions of the merchandise. Inasmuch as 19 CFR 177.1 only permits a binding ruling to address prospective transactions, we cannot therefore issue a ruling to Kuehne & Nagel. However, the NIS has requested on behalf of the field import specialists in your district that we treat this request as an internal advice under 19 CFR 177.11.

FACTS:

The merchandise at issue are various electric, oil and gas- fired ovens. The models 1000 LT Electric and 1000 LTG (gas operated)) are rack ovens possessing a single chamber capacity of up to 20 pans. The submitted literature states that they are ideal for bakeries, supermarkets, restaurants, and institutional facilities.

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The model 9100 Electric is a rack oven possessing a single rack capacity of up to 20 pans. The submitted literature also states that it is ideal for bakeries, supermarkets, restaurants, and institutional facilities.

The "NOVA" model is an electric deck oven for baking and cooking with a 1 pan to 24 pan capacity. The NOVA is also claimed to be used in bakeries, supermarkets, restaurants, and institutional facilities.

The models 9020 (electric), 9021 (oil), 9022 (gas-fired) are rack ovens used for the baking of bread, rolls, cakes, pies, cookies and the roasting of meats. They are claimed to be used by medium size wholesalers (i.e., those who sell bakery items on the premises as well as to other bakeries, supermarkets, restaurants, etc.).

The models 9040 (electric), 9041 (oil), 9042 (gas-fired) are also rack ovens used for the baking of bread, rolls, cakes, pies, cookies, and the roasting of meat. They are claimed to be used by medium size wholesalers as well as bakeries, supermarkets, restaurants, etc.

ISSUE:

Whether the subject ovens are properly classified within heading 8419, HTSUS, which provides for "[m]achinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change in temperature such as heating, cooking, roasting . . . other than machinery or plant of a kind used for domestic purposes . . ."; or within heading 8417, HTSUS, which provides for nonelectric industrial ovens; or within heading 8514, HTSUS, which provides for industrial electric ovens.

LAW AND ANALYSIS:

Heading 8419, HTSUS, provides for ovens whether or not they are electrically heated and other than of a kind used for domestic purposes. In HQ 088303 (June 10, 1991), Customs addressed the classification of convection ovens which were used for making bread, croissants, and cookies in retail bakeries, supermarket in- store bakeries, restaurants, cafes, convenience stores, etc. We determined that these types of ovens are used in small scale retail production and not for large scale (i.e., industrial) production. Consequently, we ruled that these retail type ovens are classifiable within subheading 8419.81.50, HTSUS, which provides for other ovens for cooking or heating food. The subject ovens are used in a similar manner as the above discussed convection ovens. They are also used in bakeries, supermarkets, restaurants, and other institutions for small scale production. It is evident -3-

that these ovens are all in the same class even though some of them also may be used by wholesalers who bake for off premises sale. Based on our earlier decision, we find that the subject models are also classifiable within subheading 8419.81.50, HTSUS.

Headings 8514 and 8417, HTSUS, each provide for industrial ovens depending on their manner of operation. The subject models do not satisfy this description. In HQ 088303, we stated that industrial ovens involved large scale production. As stated previously, the ovens at issue are used for small scale production and not industrial production. Therefore, the subject models do not satisfy the terms of either of these headings and cannot be properly classifiable therein as industrial ovens.

The meaning of the term "industrial oven" has been discussed by the Customs Court in Stella D'Oro Biscuit Co., v. United States, 79 Customs Court 28, C.D. 4709 (1977), aff'd 65 CCPA 52 (1978). This case dealt with the classification of an oven used for the manufacture of bakery products as a component of a "breadstick production line". This production line included such items as mixing equipment, conveyors, an oven and a packaging or wrapping machine. The Court concluded that this type of oven was an industrial oven. We find this situation to be a good example of "large scale production". The subject models will not be used for this type of production. Thus, we find this case instructive for determining that the subject models are not industrial ovens.

It is argued that the term "industrial" should encompass anything other than domestic. This argument would seem to have merit. However, if this were the case, then it would seem that all ovens would be classified within either headings 8514 (i.e., electric industrial) 8417 (i.e., nonelectric industrial), 8516 (i.e., electrothermic domestic) or 7321 (i.e., nonelectric domestic). This result would render subheadings 8419.81.10 and 8419.81.50, HTSUS, nullities inasmuch as they specifically provide for non-domestic ovens. It is presumed that Congress would not enact unnecessary language. U.S. Precise Imports Corp., 458 F.2d 1376, 1380, 59 CCPA 113, C.A.D. 1050 (1972).

It is also suggested that subheadings 8419.81.10 and 8419.81.50, HTSUS, are intended to include ovens that are not used in any industry and also are not domestic, for example, those used on private yachts and planes. As discussed previously, we partially agree with this statement in the sense that the above subheadings provide for both nonindustrial and nondomestic ovens. However, we disagree with the assertion that the term "industrial" encompasses

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anything which is not domestic. As stated previously, industrial involves large scale production. Therefore, we are of the view that ovens used on private yachts and planes as well as those used in bakeries, restaurants and hotels are nonindustrial and nondomestic and provided for within subheading 8419.81, HTSUS. This conclusion is supported by the nonbinding statistical breakouts for this subheading which provides for items used in aircraft and restaurants, hotels or similar locations.

HQ 082339 (January 24, 1990) is cited as support for the proposition that the term "industrial" is not limited to large scale production. In this case, we ruled that merchandise used to prepare food in a retail food service establishment was classifiable as machinery for the industrial preparation of food. Inasmuch as we are not required to compare similar headings as those involved here, that case is inapposite.

Reference is also made to the Standard Industrial Classification Manual published by the Office of Management and Budget for the proposition that the term "industrial" is not limited to large scale production. However, it is well established that statutes, regulations and administrative interpretations relating to "other than tariff purposes" are not determinative of customs classification disputes. Amersham Corp. v. United States, 564 F. Supp 813, 817, 5 CIT 49 (1983). Classification under the HTSUS is first determined by the terms of the headings. General Rule of Interpretation 1. As stated previously, the terms of the various headings relating to ovens leads to only one conclusion regarding the scope of the term "industrial" ovens. Thus, the above non-tariff reference concerning industrial is not determinative in this instance.

HOLDING:

The subject Gemini oven are classifiable within subheading 8419.81.50, HTSUS, which provides for other ovens for cooking or heating food, currently duty-free under General Column 1. Please forward a copy of this decision to Mr. Ernest Ferrante of Kuehne & Nagel, 10 Exchange Place - 19th floor, Jersey City, NJ 07302.


Sincerely,


John Durant, Director
Commercial Rulings Division