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HQ 966953

March 25, 2004

CLA-2 RR:CR:GC 966953 AML


TARIFF Nos.: 6304.92.00 or 6304.93.00; 7323.99.70

Ms. Heather C. Litman
Mr. Joseph P. Cox
Stein, Shostak, Shostak & O’Hara, P.C.
515 South Figueroa St.
Suite 1200
Los Angeles, CA 90071-3329

RE: Microradiant cooker

Dear Ms. Litman and Mr. Cox:

This is in reply to your letters, dated September 2 and 24, 2003, to the National Commodity Specialist Division (“NCSD”), New York, on behalf of SII North America (“SII”), in which you requested a classification ruling, under the Harmonized Tariff Schedule of the United States (“HTSUS”), concerning a microradiant cooker for use with microwave ovens. You supplemented the request in response to inquiries from the NCSD concerning the nature of the articles. As you are aware, your request was forwarded to this office for response. Technical information, a video and a sample were provided for our consideration. Although your submissions contained a request for a meeting or teleconference in the event that an adverse decision was contemplated, Ms. Litman withdrew that request telephonically on March 22, 2004.


We alternatively quote or paraphrase your description of the article as follows:

The microradiant cooker consists of a thermal ceramic tripod-pedestal and a Teflon-coated steel pan and lid, packaged with two textile oven mitts. The microradiant cooker is designed to maximize the thermal conductivity of ordinary microwave ovens, and thereby increase the ability of microwave ovens to heat food like a conventional oven or stove. The heat-generating base consists of a thermal ceramic integrated into a Teflon-coated steel tripod-pedestal. This thermal ceramic is what allows the microradiant cooker to imitate the heating properties of a conventional oven. The thermal ceramic absorbs microwave radiation resulting in the production of high temperatures in a short period of time. The tripod-pedestal in which the ceramic is integrated is designed to be of a particular elevation which increases stability and the heat conducting properties of the thermal ceramic.

The pan and lid will only function in conjunction with the ceramic tripod- pedestal. The lid and pan are designed and manufactured without sharp edges and with the protective coating in order to prevent arcing that ordinarily occurs when metals are placed in microwave ovens. The exterior coating and compositional alloys used to create the pan and lid are engineered to maximize thermal conductivity by deflecting certain microwaves and allowing others to enter the cooking chamber. The large opening at the top of the domed lid allows moisture to escape. The thermal energy (heat) that results browns and crisps foods in a manner similar to a conventional oven.

You aver that the articles imported with the textile oven mitts should be considered to be a set for tariff purposes and should be classified under subheading 8516.90.50, HTSUS, which provides for parts of microwave ovens. Your averment that the article is a part of a microwave oven is based in part upon the holding of the Court of Appeals for the Federal Circuit (“CAFC”) in Bauerhin Technologies Ltd. Partnership v. United States, 110 F.3d 774 (1997)(hereinafter Bauerhin).


Whether the microradiant cooker is classified under heading 6912, HTSUS, which provides for, inter alia, ceramic household or kitchenware; heading 7323, HTSUS, which provides for, inter alia, table, kitchen or other household articles and parts thereof, of iron or steel: other: of stainless steel: other: not coated or plated with precious metal: other: other, cooking ware; or under heading 8516, HTSUS, which provides for, inter alia, parts of microwave ovens?


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The HTSUS provisions under consideration are as follows:

6304 Other furnishing articles, excluding those of heading 9404: Other:
6304.92.00 00 Not knitted or crocheted, of cotton (369) 6304.93.00 00 Not knitted or crocheted, of synthetic fibers (666). 6912 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: 6912.00.50 Other.
7323 Table, kitchen or other household articles and parts thereof, of iron or steel: Other:
7323.93.00 Of stainless steel
7323.99 Other:
Not coated or plated with precious metal: Other:
7323.99.70 Cookingware.
8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof: 8516.90 Parts:
Parts for the microwave ovens of subheading 8516.50: 8516.90.50 Other.

As to the question of whether these goods constitute, as you contend, a “GRI 3(b)” (set forth below) set, they do not meet the requirement stated in the EN X(b) to GRI 3(b) in that they do not “consist of products or articles put up together to meet a particular need or carry out a specific activity.” We recognize a general activity of cooking or preparing food for consumption; however, there is no specific activity contemplated or apparent here. These items: the ceramic tripod-pedestal, the Teflon coated lid and pan and the textile oven mitts, do not represent goods dedicated to a single activity.

An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also United States v. Citroen, 223 U.S. 407 (1911). In its condition as imported, the microradiant cooker (without the two textile oven mitts) is a composite good that is prima facie classifiable in part under separate headings of the tariff: heading 6912, HTSUS, which provides for household articles of ceramics, and heading 7323, HTSUS, which provides for base metal cookware. Thus, the article is not classifiable at GRI 1. GRI 2 (b) provides in pertinent part that “the classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.” GRI 3(b) provides that “mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” Additional U.S. Rule of Interpretation 1(c), HTSUS, provides:

1. In the absence of special language or context which otherwise requires— (c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts and accessories” shall not prevail over a specific provision for such part or accessory.

Subheading 8516.90.50, HTSUS, provides for parts of microwave ovens, whereas subheading 7323.90.70, HTSUS, provides for cooking ware (pots and pans) made of metal. Given the role of the thermal ceramic plate as the source of the heat in the composite good, heading 6912, HTSUS, also merits consideration.

The Harmonized Commodity Description And Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The Explanatory Notes to Chapter 85 provide, in pertinent part, that:

This Chapter covers:

(3) Certain machines and appliances which depend for their operation on the properties or effects of electricity, such as its electro-magnetic effects, heating properties, etc. (headings 85.05, 85.11 to 85.18, 85.25 to 85.31 and 85.43). It should, however, be noted that this Chapter covers only certain types of electro-thermic apparatus, e.g., furnaces, etc. (heading 85.14) and space heating equipment, domestic appliances, etc. (heading 85.16). Non-electrical parts of the machines or apparatus of this Chapter are classified as follows:

(i) Many are in fact articles falling in other Chapters (especially Chapter 84), for example, pumps and fans (heading 84.13 or 84.14), taps, cocks, etc. (heading 84.81), ball bearings (heading 84.82), transmission shafts, gearing, etc. (heading 84.83).

(ii) Other non-electrical parts suitable for use solely or principally with a particular kind of electrical machine of this Chapter (or with a number of machines falling in the same heading) are to be classified with that machine (or those machines) or, if appropriate, in heading 85.03, 85.22, 85.29 or 85.38.

(iii) Other non-electrical parts fall in heading 84.85. (Bold emphasis in original.)

The ENs to heading 8516, HTSUS, provide in pertinent part that:

This group includes all electro-thermic machines and appliances provided they are normally used in the household (emphasis in original) . . . Others include:

(1) Microwave ovens.
The microradiant cookers are not electrothermic. They are passive in their function in that they capture or absorb the energy of the microwave oven to create heat and cook the foodstuff in a manner more akin to that achieved in a conventional oven. We conclude that the articles are not parts of microwave ovens.

The ENs to heading 6912 provide in pertinent part as follows:

The heading therefore includes:
(A) Tableware such . . . dishes and trays of all kinds . . . sauce-boats . . . cruets . . . teapot stands, table mats, knife rests . . .

(B) Kitchenware such as stew-pans, casseroles of all shapes and sizes, baking or roasting dishes, basins, pastry or jelly moulds, kitchen jugs, preserving jars, storage jars and bins (tea caddies, bread bins, etc.), funnels, ladles, graduated kitchen capacity measures and rolling-pins.

(C) Other household articles such as ash trays, hot water bottles and matchbox holders.

Given the function of the composite article: the ceramic tripod-pedestal captures microwaves and converts them to heat and the Teflon-coated pan and lid channel and contain the heat in order to cook the food on a non-stick surface, we are unable to determine which of those articles imparts the essential character. Therefore, we resort to classification under GRI 3(c), which dictates that in such instances that the articles be classified under the heading which appears last in the tariff. Thus, the pedestal-tripod and the Teflon-coated pan and lid are classified under heading 7323, HTSUS.

With regard to your arguments concerning the classification of parts founded upon Bauerhin, supra, we examine the language of the CAFC’s decision vis-à-vis the classification of the microradiant cookers. In addressing the classification of a canopy for a child safety seat, the CAFC in Bauerhin reconciled what it described as the two lines of cases concerning the classification of parts set forth in United States v. Willoughby Camera, 21 CCPA 322 (1933) and United States v. Pompeo, 43 CCPA 9 (1955). The CAFC stated that:

Willoughby Camera is one of several cases which discuss how to differentiate parts from other articles under the particular facts presented in each case. Willoughby Camera dealt with an imported tripod that was not solely used with cameras, but was "used for various other purposes." Id. at 324. The imported tripod "performed its separate function without loss of any of its essential characteristics" when used independently of the camera. It was a "distinct and separate commercial entity" from the camera. Id. at 325. The court held that the tripod was not a "part."

That case does not control the result here. The facts in Willoughby Camera are considerably different from those presented here in which the article at issue, the canopy, serves no function or purpose that is independent of the child safety seat. It is undisputedly designed, marketed, and sold to be attached to the child safety seats. The facts of this case bear a closer resemblance to United States v. Pompeo, 43 C.C.P.A. 9 (1955). In Pompeo, the issue was whether an imported supercharger was properly considered a part of an automobile. There, the court looked to the nature and function of the imported item, the supercharger, to determine whether the item was a part of an automobile. The government in that case argued that because the automobiles were able to function with or without the supercharger, the imported supercharger was not properly considered a part of the automobile. The court disagreed, noting that the classification of the supercharger should turn on the nature of the supercharger and not on the design choices of the automobile manufacturer. Because the imported supercharger was "dedicated irrevocably for use upon automobiles," the court held that the supercharger was properly classified as a part of automobiles. Pompeo, 43 C.C.P.A. at 13.

The parties seem to take different positions regarding whether Willoughby Camera or Pompeo is the controlling precedent for determining whether an imported item is or is not a "part" within the meaning of the tariff schedules. We conclude that these cases are not inconsistent and must be read together. As set forth in Willoughby Camera, an "integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article" is surely a part for classification purposes. 21 C.C.P.A. at 324. However, that test is not exclusive. Willoughby Camera does not address the situation where an imported item is dedicated solely for use with an article. Pompeo addresses that scenario and states that such an item can also be classified as a part.

Reconciling Willoughby Camera with Pompeo, we conclude that where, as here, an imported item is dedicated solely for use with another article and is not a separate and distinct commercial entity, Pompeo is closer precedent and Willoughby Camera thus does not apply. See Gallagher & Ascher Co. v. United States, 52 C.C.P.A. 11, 15-16 (1964) (noting that Trans Atlantic Co. v. United States, 48 C.C.P.A. 30 (1960), expressly limited the rule in Willoughby "to fact situations of the precise type which the court there had before it"). Under Pompeo, an imported item dedicated solely for use with another article is a "part" of that article within the meaning of the HTSUS. The canopies in this case are dedicated solely for use with the child safety seats. They are neither designed nor sold to be used independently. Therefore, the canopies are properly considered parts under the HTSUS.

In this case, there is no specific provision that covers the canopies. Rather, Customs argues that the canopies should be classified under a basket provision. Under Rule 1(c) of the Additional Rules of Interpretation, quoted above, a provision for a part must prevail over a mere basket provision. Accordingly, we hold that the Court of International Trade did not err by classifying the canopies under heading 9401 as parts of car seats.

We find that Bauerhin does not require the result that you desire for several reasons: first, while the microradiant cooker is dedicated for use only with microwave ovens, it remains a separate and distinct commercial entity from microwave oven in which it is placed. Although the cooker enhances the use of a microwave oven, it is not irrevocably or unalterably incorporated into or affixed to a microwave oven. It can, as you concede, be easily placed within and removed from a microwave oven, in order for the microwave oven to be used in a more “conventional” mode. Second, classification within heading 8516 is governed by the notes to Section XVI. Note 2 to Section XVI sets forth the rules for classification of parts within Chapter 85. Section XVI, Note 2(a), HTSUS, states, in relevant part, that subject to certain exceptions that are not relevant here, parts of machines which are goods included in any of the headings of chapters 84 and 85 are in all cases to be classified in their respective headings. Note 2(b) states that other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading are to be classified with the machines of that kind. Finally, Additional U.S. Rule 1(c) governs the classification in this instance. The microradiant cooker is more similar to the Willoughby tripod than it is to the Pompeo supercharger. Therefore, we find that the application of the Willoughby standard is most appropriate factually in this case, and, that the microradiant cooker is not an "integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article." Further, in consideration of the Notes to Section XVI, Additional U.S. Rule 1(c), and the factual distinctions mentioned above, we conclude that the microradiant cooker is not a part of a microwave oven.

Finally, you rely on three prior rulings to substantiate your position. In Headquarters Ruling Letter (“HQ”) 087460, dated May 20, 1991, and HQ 068280, dated June 25, 1981, we classified glass trays designed to fit in the bottom cavity of microwave ovens to be classified as parts of microwave ovens under the HTSUS and the Tariff Schedules of the United States (“TSUS”), the predecessor to the HTSUS, respectively. In New York Ruling Letter (“NY”) 807861, dated March 14, 1995, we classified a mixing bowl that affixed to the interior of a microwave oven under subheading 8516.90.50, HTSUS, as a part of a microwave oven. We believe that the articles classified in the rulings cited are readily distinguishable from the articles at issue. The glass trays in the first two rulings cited are parts of the microwave ovens. The ovens were designed specifically with a cavity to house the removable glass trays and the glass trays were contemplated in the design to be removable so that they could be cleaned and repositioned in the ovens. The microradiant cooker is a separate and distinct article that was developed as a device that can supplement or augment the use of the microwave oven. It is not a part of the microwave oven for this and the reasons discussed above. Likewise, the mixing bowl is distinguishable from the microradiant cooker. The mixing bowl was specifically designed for the particular oven with a spindle to fit into the turntable on the bottom of the oven. The microradiant cooker is a “generic” device; it is manufactured for use in microwave ovens generally, not with specific models or brands of such ovens.

The ENs to heading 7323, HTSUS, provide, in pertinent part, as follows:

This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes . . .

These articles may be cast, or of iron or steel sheet, plate, hoop, strip, wire, wire grill, wire cloth, etc., and may be manufactured by any process (moulding, forging, punching, stamping, etc.). They may be fitted with lids, handles or other parts or accessories of other materials provided that they retain the character of iron or steel articles (bold emphasis in original).

The group includes:

(1) 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 (emphasis in original) . . .

The microradiant cooker in its most basic form is a pan with a lid used to cook food. It is no more a part of a microwave oven than any pot or pan is a part of a stove. The article is clearly contemplated by heading 7323, HTSUS.

Finally, in your submission there are references to “confidential” information. No references are made to that information in the body of this ruling. It is Customs and Border Protection’s (“CBP”) position that granting confidential treatment pursuant to 19 C.F.R. 177.2 (b)(7) is coterminous with Exemption 4 of the Freedom of Information Act. See 5 U.S.C. 552 (b)(4). Exemption 4 was enacted to preclude disclosure of information such as customer lists, costs and pricing information, identification of suppliers, quantities, formulas, market share and other similar information, the disclosure of which would inure to the competitive disadvantage of the party providing the information. See also 19 C.F.R. 177.8 (a)(3) (providing that “[n]o part of a ruling lettershall be deemed to constitute privileged or confidential commercial or financial information or trade secrets exempt from disclosure” unless the information is clearly identified and the reasons underlying the claim are clearly set forth.).

While the information for which confidential treatment was sought was clearly identified, the “request” (which was implied rather than affirmatively asserted) failed to set forth the reasons why disclosure of the information would prejudice your client’s competitive position.

Department of Homeland Security regulations addressing the disclosure of business information provide that a party submitting business information will be advised of the receipt of a request for such information when the submitter has in good faith designated information as commercially or financially sensitive. See 19 C.F.R. 103.35. Since CBP has determined that the request for confidentiality, although unperfected, was made in good faith, if CBP receives a Freedom of Information Act request for which the information deemed confidential by SII is responsive, you will, on its behalf, be advised. The opportunity to present reasons why the responsive information should not be disclosed will then be provided.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you or your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is now available on the CBP website at www.cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you or your client should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


The microradiant cooker, which consists of the ceramic and metal tripod-pedestal and the Teflon-coated pan and lid, is classified under subheading 7323.99.70, HTSUS. The classification of the mitts, if of cotton, will be under subheading 6304.92.00, HTSUS, (Category 369) or, if of synthetic material, under subheading 6304.93.00, HTSUS (Category 666).


Myles B. Harmon, Director
Commercial Rulings Division

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