April 7, 2004 CBP Bulletin Notices on Certain Laryngectomy Covers and Industrial Smokehouse Apparatus

CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by May 7, 2004, the date that written comments on the proposed rulings are due.

Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in these notices.

CBP also states that these notices cover any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Revocation of Classification Ruling

Certain Laryngectomy Covers. CBP states that stoma covers are used by people who have had a laryngectomy, the surgical removal of the larynx. Stoma covers filter, warm, and moisturize inhaled air and absorb secretions. The following are the three laryngectomy covers at issue:

Romet laryngectomy filter covers are dickey-type cotton knit covers with velcro fastenings measuring about 8.5 by 11 inches, which do not actually include a filtering material. The cover can be washed and used indefinitely.

The Buchanan laryngectomy protector is made of white foam enclosed in a cotton mesh covering that ties around the neck, which can be worn under clothing or at home. It is typically worn for one day and then washed. After 10 washings, it should be discarded.

Stomafoam squares are 2 x 2.5 inch pieces of foam either 1/8 or 3/16 inches thick. They are held in place over the stoma by a strip of adhesive, and they are used at home or under regular clothing or neckwear and discarded after each use.

CBP is proposing to issue HQ 966874 in order to revoke HQ 951654 and reclassify (a) the Romet laryngectomy filter covers under HTS 6117.80.9510 as "other accessories of cotton," (b) the Buchanan laryngectomy protector under HTS 3926.90.98 as "other articles of plastics and articles of other materials of headings 3901 to 3914," and (c) the Stomafoam squares under HTS 3919.90.50 as "other self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls;" rather than classifying all three under HTS 9021.90.8000 which provides for "other orthopedic appliances, etc. which are worn, etc. to compensate for a defect or disability, etc."

CBP explains that it now believes that the three covers are correctly classified according to their material makeup.

In addition, CBP states that these covers remain eligible for duty-free treatment under HTS 9817.00.96.

proposed: 6117.80.9510, 14.6% (Cat 359); 3926.90.98, 5.3%; 3919.90.50, 5.8%.

current: 9021.90.8000, duty-free.

Proposed Revocation of Two Classification Rulings

Industrial Smokehouse Apparatus. According to CBP, at issue are the following:

VEMAG Aeromat (proposed HQ 966949) was described as 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 C above ambient temperature and 95 C, the apparatus heats the meat by means of steam passing through a heat exchanger.

Shroter Smokehouse (proposed HQ 966950) was described as a steam-operated commercial oven used in large scale production of meat products such as sausage, pepperoni, prosciutto, etc. It is designed to operate at temperatures ranging from 70 to 200 F and is used in heating, cooking, roasting, evaporating, steaming, drying and cooling applications.

CBP is proposing to issue HQ 966949 and HQ 966950 in order to revoke HQ 959217 and HQ 959485, respectively, and reclassify the VEMAG Aeromat and Shroter Smokehouse under HTS 8419.81.90 as "other machinery, etc., for cooking or heating food" rather than under HTS 8417.80.0000, which provides for "other (except parts) industrial or laboratory furnaces and ovens, etc."

CBP explains that, among other considerations, new and more precise sources of information now available indicate 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, CBP states that 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, CBP states that it now appears that the VERMAG Aeromat and Shroter Smokehouse are not ovens, either under HTS 8417 or 8419, but rather are other machinery of HTS 8419.

proposed: 8419.81.90, duty-free; current: 8417.80.0000, 3.9%.

April 7, 2004 CBP Bulletin (Vol. 38, No. 15) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2004/vol38_04072004_no15/