CLA-2 CO:R:C:M 950352 LTO
District Director of Customs
Charleston, South Carolina
RE: Protest No. 1601-0-000267; Propeller Circulators and
Dilution Nozzles; EN 84.24; EN 84.39; HQ 085842; A. N. Deringer,
Inc. v. United States; 8439.10.00; 8439.91.90; 8479.90.80
Dear Sir:
This protest concerns the tariff classification of propeller
circulators and dilution nozzles under the Harmonized Tariff
Schedule of the United States (HTSUS). The circulators and the
nozzles were liquidated at the port of Charleston under
subheading 8479.90.80, HTSUS, which provides for "[m]achines and
mechanical appliances having individual functions, not specified
or included elsewhere in this chapter; parts thereof . . .
[p]arts . . . [o]ther." The protestant contends that the
propeller circulator should be classified under subheading
8439.10.00, HTSUS, which provides for " . . . [m]achinery for
making pulp of fibrous cellulosic material," and that the
dilution nozzle should be classified under subheading 8439.91.90,
HTSUS, " . . . [p]arts . . . [o]f machinery for making pulp of
fibrous cellulosic materials . . . [o]ther."
FACTS:
The propeller circulator is a component of a high
consistency, downflow bleach tower. Bleach towers are used
during the process of making cellulosic pulp. Pulp, which is
usually brown in color, must undergo bleaching to be made into
white paper. In a bleach tower, pulp stock is combined with
chemicals and heat to brighten the pulp fibers which are a
component of the stock. The propeller circulator is used in the
dilution zone of the bleach tower to ensure a thorough agitation
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of the stock with dilution water so that the stock consistency is
reduced from 10-12 percent to 3-4 percent. This reduction is
necessary so that the bleach chemicals can be removed from the
stock by a separate machine known as a stock washer.
The circulator is made of steel and is composed of a shaft
and several propeller-like blades. The shaft passes through an
opening in the side of the bleach tower (a seal prevents leakage
around the shaft opening) and is powered by an electric motor and
V-belt transmission which are located on the outside of the
bleach tower. The circulators are imported without their motors.
The dilution nozzle is also used in the dilution zone of the
bleach tower. The nozzle is one of the components of the water
distribution system within a bleaching tower. The other
components are: a filtrate chest (water reservoir), a pump,
piping, and the flow control valves. The product is designed
specifically to be used in diluting pulp with dilution liquid.
The principal parts of the nozzle are the spring housing,
the inlet housing and the nozzle head. Fitted between the spring
housing and the inlet housing is a membrane which steers the
nozzle head.
ISSUE:
What is the proper classification for the propeller
circulators and the dilution nozzles under the HTSUS?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
1. Propeller Circulator
Heading 8439, HTSUS, provides for "[m]achinery for making
pulp of fibrous cellulosic material or for making or finishing
paper or paperboard (other than the machinery of heading 8419);
parts thereof." The Harmonized Commodity Description and Coding
Explanatory Note (EN) 84.39, pg. 1227, states that this heading
"covers machinery for making fibrous cellulosic pulp from various
cellulosic materials (wood, esparto grass, straw, rags, old rope,
waste paper, etc.) whether the pulp is for paper or paperboard
making or for other purposes . . . ." Bleach towers are used
during the process of making cellulosic pulp. Pulp, which is
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usually brown in color, must undergo bleaching to be made into
white paper. In a bleach tower, pulp stock is combined with
chemicals and heat to brighten the pulp fibers which are a
component of the stock. Thus, the bleach towers would be
classifiable under Heading 8439, HTSUS.
Subheading 8439.91, HTSUS, provides for "[p]arts . . . [o]f
machinery for making pulp of fibrous cellulosic materials."
The propeller circulator is a component of the high consistency
downflow bleach towers, which are classifiable under Heading
8439, HTSUS. The propeller circulator is used in the dilution
zone of the bleach tower to ensure a thorough blending of the
pulp stock with dilution water so that the stock consistency is
reduced from 10-12 percent to 3-4 percent. The circulator is a
part of machinery for making pulp of fibrous cellulosic
materials, and is classifiable under subheading 8439.91, HTSUS.
Thus, the only issue with regard to the propeller circulator that
remains is whether it can be considered a "stock-treating part."
Subheading 8439.91.10, HTSUS, provides for "[p]arts . . .
[o]f machinery for making pulp of fibrous cellulosic materials .
. . [b]ed plates, roll bars and other stock-treating parts." In
A. N. Deringer, Inc. v. United States, C.D. 2681, the court
stated that "[t]he least that can be expected of a process to
qualify it as 'treatment' is some action upon stock which changes
its form or composition." While considering the classification
of a stock agitator, the court concluded that where stock
undergoes no change in composition due to the action of a
propeller used for agitation, the propeller is not a stock-
treating part, holding:
The stock agitator is a stirring device, resembling
a hollow airplane propeller, which is used in storage
tanks to maintain the homogeneity of the stock. The
testimonial record . . . discloses that the function
of the agitator is to maintain homogeneity and not to
induce it. We are, therefore, of the opinion that
the 'stirring' performed by the agitator is not
'stock-treatment' in the tariff sense [emphasis in
original].
The circulator at issue, like the stock agitator, is used in a
tank-like article known as a bleach tower. Unlike the agitator
for a storage tank involved in A. N. Deringer, the circulator
does not maintain homogeneity--rather, it actually functions to
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mix the stock and dilution water in a process which reduces stock
consistency from 10-12 percent to 3-4 percent. Thus, it effects
the consistency of the stock, and is a stock-treating part of the
bleach tower. Accordingly, the article is classifiable under
subheading 8439.91.10, HTSUS.
2. Dilution Nozzle
Heading 8424, HTSUS, provides for "[m]echanical appliances
(whether or not hand operated) for projecting, dispersing or
spraying liquids or powders; fire extinguishers, whether or not
charged; spray guns and similar appliances; steam or sand
blasting machines and similar jet projecting machines; parts
thereof." EN 84.24, pg. 1188, states that this heading covers
"machines and appliances for projecting, dispersing or spraying
steam, liquids or solid materials (e.g., sand, powders, granules,
grit or metallic abrasives) in the form of a jet, a dispersion
(whether or not in drips) or a spray." The dilution nozzle
functions as part of a water distribution system within a
bleaching tower to project, disperse or spray liquids. Water or
filtrate is pumped from a reservoir through piping and dispersed
into the bleach tower through the dilution nozzles by means of
control valves.
In HQ 085842, dated March 13, 1990, sprinkler heads for use
in ceiling-installed fire extinguishing sprinkler systems were
classified under subheading 8424.90.90, HTSUS, which provides for
parts of mechanical appliances for projecting, dispersing or
spraying liquids. The sprinkler head operated in the system to
spray water over the interior of a room to extinguish fires. The
system was mechanically operated while the sprinkler head, by
itself, was not. Like the sprinkler head, which was a component
of the fire extinguishing sprinkler system, the dilution nozzle
functions as a component of a water distribution system within
the bleach tower system.
Chapter 84, Note 2 requires that articles which can be
classified in Heading 8424, HTSUS, as well as in Heading 8439,
HTSUS, the provision claimed by the protestant, must be
classified in the former heading. Thus, the articles in question
are classifiable under subheading 8424.90.90, HTSUS.
HOLDING:
The propeller circulators are classifiable under subheading
8439.91.10, HTSUS, which provides for "[m]achinery for making
pulp of fibrous cellulosic material or for making or finishing
paper or paperboard (other than the machinery of heading 8419);
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parts thereof . . . [p]arts . . . [o]f machinery for making pulp
of fibrous cellulosic materials . . . [b]ed plates, roll bars and
other stock-treating parts." The corresponding rate of duty for
articles of this subheading is 4.7% ad valorem.
The dilution nozzles are classifiable under subheading
8424.90.90, HTSUS, which provides for "[m]echanical appliances
(whether or not hand operated) for projecting, dispersing or
spraying liquids or powders; fire extinguishers, whether or not
charged; spray guns and similar appliances; steam or sand
blasting machines and similar jet projecting machines; parts
thereof . . . [p]arts . . . [o]ther." The corresponding rate of
duty for articles of this subheading is 3.7% ad valorem.
Since reclassification and reappraisement of the merchandise
as indicated above would result in no net duty reduction, you are
instructed to deny the protest in full. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division