CLA-2 OT:RR:CTF:TCM H185697 LWF
Port Director
Port of Boston
U.S. Customs and Border Protection
10 Causeway Street, Suite 603
Boston, MA 02222-1059
Attn: Bernadette Quirk, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 0401-11-100102; Classification of cast iron cookware
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 0401-11-100102, timely filed on June 30, 2011, on behalf of Old Mountain LLC (“Old Mountain”). The AFR concerns the classification of cast iron cookware under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we considered the arguments raised in Old Mountain’s supplemental submission dated January 31, 2011.
FACTS:
The merchandise is described as articles of pre-seasoned cast iron cookware (the “Cookware”), imported individually and consisting of a variety of skillets, Dutch ovens, sauce pans, and griddle accessories. Old Mountain states that the Cookware consists of 93.24-94.54% Iron, 3.3-3.6% Carbon, 1.6-2.2% Silicon, 0.5-0.9% Manganese, and 0.06% Sulfur. The pre-seasoned finish consists of a combination of soybean oil and black, food-approved paint. The mixture of soybean oil and food-approved paint is sprayed on the Cookware and baked at a temperature of approximately 716 degrees Fahrenheit. Old Mountain states that the pre-seasoned treatment is identical for each of the articles at issue.
The protest at issue involves the entry of 19 articles of Cookware entered on March 11, 2010 under subheading 7323.92.00, HTSUS, which provides for “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel: Other: Of cast iron, enameled.” The Cookware consists of articles of cast iron, described by the manufacturer as follows:
Item No. 10101 – Skillet, 6½” x 1¼”
Item No. 10102 – Skillet, 8” x 1¾”
Item No. 10103 – Skillet w/ handle, 10½” x 2”
Item No. 10104 – Skillet w/ handle, 12” x 2”
Item No. 10108 – Sq. Grill Pan w/ handle, 10 ½” x 1¾”
Item No. 10112 – 9 Qt. Flat-bottom Dutch oven w/ trivet
Item No. 10114 – 4 Qt. Dutch oven w/ feet & trivet
Item No. 10118 – Casserole w/ lid, 10½” x 8½” x 4”
Item No. 10119 – 2-burner Reversible Grill/Griddle
Item No. 10128 – 8” Trivet
Item No. 10129 – Tea Kettle
Item No. 10132 – Fajita Plate w/ wood base & hot pad
Item No. 10137 – Spoon Rest
Item No. 10146 – Pig Bacon Press
Item No. 10147 – Round Griddle
Item No. 10150 – Rooster Grill Press
Item No. 10151 – Cow Grill Press
Item No. 10164 – Sauce Pan, 2 Qt.
Item No. 10165 – Sauce Pan, 3 Qt.
On December 7, 2010, U.S. Customs and Border Protection (CBP) issued a CF-29 Notice of Action (“NOA”) reclassifying the articles of Cookware under subheading 7323.91.50, HTSUS, which provides for “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like of iron or steel: Other: Of cast iron, not enameled: Other.” The merchandise was liquidated pursuant to the NOA under subheading 7323.91.50, HTSUS, on January 1, 2011. The importer filed its protest on June 30, 2011, claiming that the correct classification for the Cookware is under subheading 7323.92.00, HTSUS.
Although Protestant has not submitted a sample of the Cookware in the instant case, Old Mountain entered identical merchandise in the Port of Detroit on February 18, 2010. The Port of Detroit sampled the shipment and submitted a sample 6-inch cast iron skillet for laboratory testing. CBP Lab No. CH20110552, dated May 5, 2011, states that the sample “is a cast iron skillet, approximately six inches in diameter. Analysis of the sample shows that it does not have an enamel finish. The chemistry of the base metal is consistent with a cast iron product.”
ISSUE:
Whether cast iron cookware pre-seasoned with a treatment of soybean oil-based paint is classified under subheading 7323.91, HTSUS, as enameled kitchen articles, or subheading 7323.92, HTSUS, as non-enameled kitchen articles?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 0401-11-100102 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the Protestant states that the question of whether the pre-seasoning treatment of the Cookware constitutes “enameling” for the purposes of tariff classification is an issue of first impression.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The HTSUS subheadings under consideration are the following:
7323 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel:
Other:
7323.91 Of cast iron, not enameled:
7323.91.50 Other…
…
7323.92.00 Of cast iron, enameled.
* * * * *
Note 1 of Chapter 73 states, in pertinent part, the following:
In this chapter the expression “cast iron” applies to products obtained by casting in which iron predominates by weight over each of the other elements and which do not comply with the chemical composition of steel as defined in Note 1(d) to chapter 72.
* * * * *
Note 1(d) to Chapter 72, HTSUS, states, in pertinent part, the following:
In this chapter and, in the case of notes (d), (e) and (f) below throughout the tariff schedule, the following expressions have the meanings hereby assigned to them:
…
(d) Steel
Ferrous materials other than those of heading 7203 which (with the exception of certain types produced in the form of castings) are usefully malleable and which contain by weight 2 percent or less of carbon. However, chromium steels may contain higher proportions of carbon.
* * * * *
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 HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 73.23(A) states, in pertinent part, the following:
Table, kitchen or other household articles and parts thereof
…
The group includes:
Articles for kitchen use such as saucepans, steamers, pressure cookers, preserving pans, stew pans, casseroles, fish kettles; basins; frying pans, roasting or baking dishes and plates; grid-irons, ovens not designed to incorporate heating elements; kettles; colanders; frying baskets; jelly or pastry moulds; water jugs; domestic milk cans; kitchen storage tins and canisters (bread bins, tea caddies, sugar tins, etc.); salad washers; kitchen type capacity measures; plate rack, funnels.
* * * * *
Heading 7323, HTSUS, provides, in relevant part, for “table, kitchen or other household articles and parts thereof, of iron or steel.” Inasmuch as the Cookware is described fully in heading 7323, HTSUS, as kitchen articles of iron, there is no dispute that the instant merchandise is classified in heading 7323, HTSUS. See EN 73.23(A) (articles of kitchen use include saucepans, steamers, pressure cookers, preserving pans, stew pans, casseroles, fish kettles; basins; frying pans, roasting or baking dishes and plates; grid irons, ovens not designed to incorporate heating elements; kettles; colanders; frying baskets; jelly or pastry moulds; water jugs; domestic milk cans; kitchen storage tins and canisters (bread bins, tea caddies, sugar tins, etc.); salad washers; kitchen type capacity measures; plate racks, funnels). Note 1 to Chapter 73, HTSUS, states that the term “cast iron” applies to products obtained by casting in which iron predominates by weight over each of the other elements and which do not comply with the chemical composition of steel as defined in Note 1(d) to Chapter 72, HTSUS. The Cookware consists of cast iron that predominates by weight over each of the other elements. Furthermore, the Cookware consists of 3.3-3.6% Carbon, and therefore, does not comply with the chemical composition of steel as defined in Note 1(d) to Chapter 72, HTSUS. Consequently, we find that the term “cast iron” applies to the Cookware for purposes of classification under heading 7323, HTSUS. As this dispute concerns the proper tariff classification of merchandise in the subheadings of the same heading, GRI 6 applies.
Subheading 7323.92, HTSUS, provides, in relevant part, for “Table, kitchen, or other household articles and parts thereof, of iron or steel: Other: Of cast iron, enameled.” The term “enameled” is not defined in the HTSUS or the ENs. However, the courts have provided guidance on the meaning of “enameled” and the process by which enamel coatings are created. In National Enameling & Stamping Co. v. New England Enameling Co., 151 F. 19, 20 (2nd Cir. 1906), the United States Circuit Court of Appeals for the Second Circuit described the process of enameling metal ware as follows:
The art of enameling metal is old. Many different formulas and substances are used to form the enamel, but the usual process is substantially as follows: Certain ingredients, usually a mixture of silica or sand, and of other substances having a fluxing property to produce glass when mixed with sand and subjected to heat, are mixed together mechanically. This mixture is called by enamelers the "mix." The mix is then subjected to a high degree of heat and fused, resulting in a vitrified or glassy mass. This is called the "frit." The frit is then put in a mill and ground fine, with a mixture of clay and water, resulting in a liquid paste. This is called the "dip." The metal article to be enameled is then dipped in the paste, dried, and subjected to a very high temperature in an oven or muffle. In some cases more than one dipping and burning takes place. The result is, if the operation is successful, a metal article with its surface covered with an adherent coat of metal. Nat’l Enameling & Stamping Co., 151 F. at 20.
In Rion v. Ault, 482 F.2d 948 (C.C.P.A. 1973), the United States Court of Customs and Patent Appeals emphasized that vitrified enamel fired onto metal sanitary ware is formed at high temperatures during the final drying and baking process:
[T]he practice is to heat the workpiece, such as an iron bathtub or basin, to 1400 degrees - 1800 degrees [Fahrenheit] in a furnace from which it is withdrawn and coated with frit which is sprinkled onto the hot surface and fuses thereon to form a film. The workpiece is then returned to the furnace to complete the fusion process. This coating process may be repeated until the desired thickness of enamel is produced, after which the workpiece is cooled. Rion, 482 F.2d at 950.
CBP has also addressed the process of enameling in prior rulings. In New York Ruling Letter (“NY”) J81512, dated March 11, 2003 (concerning the classification of a beverage dispenser from China), we described “enameling” as the “process in which an object coated with a paint containing silica is subjected to intense heat, so that the silica is vitrified into an enamel or porcelain surface.” In NY R00851, dated September 30, 2004 (concerning the classification of cookware from China), we stated that the term “enameled” applies to articles that “have not been simply painted with enamel paint, but truly enameled, that is, coated with vitreous glass.” Likewise, in CBP’s Informed Compliance Publication, Household Articles of Base Metal, dated January 1, 2010, we stated in reference to Chapter 73, HTSUS, that: “Enamel is a coating of vitrifiable enamel, fused on a metal base creating a glass-like surface. The enamel contains silica, which, when vitrified under intense heat, turns into a tough, shiny surface of porcelain.”
Protestant states in a supplemental submission, dated January 31, 2012, that the term “enameled” is used in commerce to describe a variety of modern paints, varnishes, and resins, and cites to EN 32.08 and industry definitions to demonstrate that within the tariff schedule, the meaning of term “enameled” in heading 7323, HTSUS, should not be solely limited to vitreous enamels. Specifically, Protestant asserts that “the term is used so broadly within the paint and coating industry that no single definition prevails, though all sources seem to agree enamel provides a glossy finish.”
The United States Court of Appeals for the Federal Circuit has stated that while the primary rules of statutory construction hold that words should be defined consistently throughout a statute, a disputed term should not be insulated from analysis in light of the nature and structure of the statute. Value Vinyls, Inc. v. United States, 568 F.3d 1374, 1379-80 (Fed. Cir. 2009). Therefore, to properly define the term “enameled” as used within heading 7323, HTSUS, CBP must consider the term in the context of subheadings 7323.91 and 7323.92, HTSUS. In comparing the meaning of “enameled” in heading 7323, HTSUS, with variations of the term “enamel” in headings 3207 and 3208, HTSUS, it is proper for CBP to note that whereas headings of Section VI describe products of the chemical or allied industries that can be used in any number of commercial applications, heading 7323, HTSUS, specifically describes a discrete class of merchandise, namely table, kitchen, or household articles of iron or steel. As such, it is necessary to distinguish wholly different uses of the term “enameled” (e.g., heading 8544, HTSUS, “Insulated (including enamelled or anodised) wire, cable (including co-axial cable) and other insulated electric conductors, whether or not fitted with connectors”) from the meaning of the term as applied to kitchen articles of heading 7323, HTSUS.
Furthermore, we find that it is inappropriate to conclude that the application of any paint or varnish that dries to a glossy or smooth finish results in an enameled article. EN 32.08 provides a description for paints and varnishes of heading 3208, HTSUS, and states, in pertinent part, that “When the vehicle consists of a varnish, the paint is known as an enamel; on drying it gives a particularly smooth hard film, which may be flossy or matt.” As such, the plain meaning of EN 32.08 indicates that the term “enamels” is used in heading 3208, HTSUS, to describe a type of paint that produces a varnish with a smooth, hard film. By contrast, the term “enameled” in heading 7323, HTSUS, is used to identify the unique physical characteristics of a specific type of finished article of cast iron. Consequently, the mere fact that the instant soybean oil-based paint may be individually classified as a varnish of heading 3208, HTSUS, does not presuppose that an article of cast iron which is partially coated with a varnish must necessarily be considered “enameled” for purposes of classification under heading 7323, HTSUS.
Protestant also asserts that the term “enameled” as used in heading 7323, HTSUS, should be read to include modern non-vitreous, synthetic coatings which are applied in processes similar to traditional vitrifiable enamel. In support of a broader reading of the term, Protestant correctly notes that the courts have ruled that eo nomine provisions for the classification of merchandise necessarily include technological advancements or commercially sophisticated versions of the same articles. Borneo Sumatra Trading Co., Inc. v. United States, 311 F. Supp. 326, 338-39 (Cust Ct. 1970), citing R.J. Saunders & Co., Inc. v. United States, 49 CCPA 87, C.A.D. 801 (1962).
In Wagner Spray Tech. Corp. v. United States, the United State Court of International Trade concluded that an eo nomine provision may be expanded to include improved merchandise only when the essential characteristic is shared between the original and improved good. 31 C.I.T. 676, 680 (2007) (“[A]n 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.” (quoting Casio, Inc. v. United States, 73 F.3d 1095, 1098 (Fed. Cir. 1996))).
Protestant states in its CBP Form 19 that the Cookware’s pre-seasoned finish consists of “a combination of soybean oil and a food-approved paint.” However, whereas enamel typically covers the entire surface of traditional cookware of subheading 7323.92, HTSUS, the soybean oil and paint combination is only sprayed onto cooking surfaces of the instant merchandise and then baked at a temperature of approximately 716 degrees Fahrenheit to bond the paint to the cast iron metal. We emphasize that Protestant has not asserted that the food-approved paint contains silica in the form of vitrifiable glass. Furthermore, unlike traditional cookware enamel which is typically fired at between 1400 and 1800 degrees Fahrenheit, Protestant states the soybean oil and paint combination is baked onto Cookware at a substantially lower temperature. CBP Laboratories and Scientific Services has also analyzed Old Mountain’s six-inch cast iron skillet and concluded that the sample does not have an enamel finish. As such, the physical characteristics and application method of the Cookware’s pre-seasoned finish indicate that pre-seasoned coating substantially differs from those of traditional enameled cast iron cookware.
Likewise, the channels of trade of the Cookware support a finding that the merchandise substantially differs from traditional enameled cast iron kitchen ware. For example, a search for the terms “enameled cast iron skillet” on the website of online retailer Amazon.com returns a large selection of traditionally enameled kitchen ware. Unlike the instant merchandise, the enameled kitchen wares are entirely covered with vitrified enamel, and each is decorated with bright colors typical of enameled cookware. We note that the enameled articles also contain the word “enamel” in their product title, so as to inform purchasers of the physical characteristics of the merchandise. By contrast, the Old Mountain pre-seasoning treatment does not cover the entire article, and is only applied to the bottom cooking surfaces of the Cookware. The remaining surfaces are left uncoated, and the finished Cookware lacks the distinctive bright colors of traditional enameled cookware. Furthermore, Old Mountain does not advertise its Cookware as “enameled,” and we have found that the term is absent from Old Mountain’s entire website.
With respect to the use of pre-seasoned Old Mountain Cookware in the same manner as enameled cast iron kitchen wares, we find that both articles have a stick-resistant cooking surface, and that neither article needs to be “seasoned.” However, whereas vitrified enamel cookware is non-reactive and especially suited for cooking acidic foods containing ingredients such as tomatoes or lemon juice, the Old Mountain Cookware is considered reactive cookware because its metal surface is not entirely coated, allowing the bare cast iron to impart trace metallic flavors to acidic and alkaline foods.
Consequently, because the Old Mountain Cookware does not possess the essential character of traditional enameled cast iron cookware, it does not fall within the eo nomine provision of subheading 7323.92, HTSUS. See Wagner, supra, at 680.
As such, the merchandise is classified in subheading 7323.91.50, which provides for “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, or iron or steel: Other: Of cast iron, not enameled: Other.”
HOLDING:
By application of GRI 6 and GRI 1, Old Mountain’s pre-seasoned cast iron cookware is classified in heading 7323, HTSUS. Specifically, it is classifiable in subheading 7323.91.50, which provides for “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, or iron or steel: Other: Of cast iron, not enameled: Other.” The column one, general rate of duty is 5.3% ad valorem. You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any re-liquidation 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 International Trade, 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 http://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