CLA-2 CO:R:C:M 950445 KCC
Pentti Pirinen
Manager
United Paper Mills Ltd.
Walkisoft Engineering
P.O. Box 40 SF-37601 Valkeakoski
FINLAND
RE: Reconsideration of 089053; wood pulp defibrator machines and
forming sections and transfer section of air laid dry
forming machines; EN 84.39 (I)(E); refiner; Note 7, Chapter
84; Additional U.S. Rule of Interpretation 1(a); principal
use
Dear Mr. Pirinen:
This is in reference to your letter dated September 12,
1991, requesting reconsideration of Headquarters Ruling Letter
(HRL) 089053 dated July 2, 1991, concerning wood pulp defibrator
machines and forming and transfer sections of air laid dry
forming machines to be imported from Finland.
FACTS:
The merchandise at issue is wood pulp defibrator machines
and forming and transfer (press and embossing) sections of an air
laid dry forming machine. Air laid dry forming is a process
whereby air, instead of water, is used to transport and deposit
individual fibers onto a moving belt in order to form them into a
continuous sheet or web. The air laid dry forming line consists
basically of machines which prepare and feed pulp fibers, and the
air laid forming machine. The air laid forming machine consists
of forming, compacting, embossing, grinding, drying and reeling
sections.
The fiber preparation area consists of a machine to unwind
continuous sheets of pulp, a pulp defibrator machine to defibrate
the pulp sheets into individual fibers, and an in handling system
which is used to blow the pulp fibers into the forming section of
the air laid dry forming machine. The forming section consists
of two perforated drums rotating inside a housing known as the
forming head. The fibers circulate horizontally between the
drums and are drawn by means of a vacuum onto a belt which
continuously moves beneath the rotating drums. This results in
the formation of a continuous fiber web. The web passes through
a press where it is compacted, and embossers where a pattern is
imparted to the web in order to give it added strength. In the
binder application section a latex emulsion is sprayed onto the
material so that the fibers will adhere to each other and will
not separate when moistened. The drying section is utilized to
cure the binder and dry the web, thus increasing its resiliency
and tactile qualities. Finally, the web passes through a
calender and is wound onto a reel.
HRL 089053 held that the principal purpose of the
defibrator is to break up continuous rolls of pulp which is not
specifically described by any heading. Pursuant to Chapter 84,
Note 7, HTSUS, the defibrators were classified under subheading
8479.89.90, HTSUS, as "Machines and mechanical appliances having
individual functions, not specified or included elsewhere in this
chapter; parts thereof...Other machines and mechanical
appliances...Other...." Additionally, HRL 089053 held that the
air laid dry forming machines are of the class or kind of
machines used principally in the U.S. for the production of
nonwovens. Therefore, the forming and transfer sections are
parts of the machines of heading 8449, HTSUS, and were classified
under subheading 8449.00.50, HTSUS, as "Machinery for the
manufacture or finishing of felt or nonwovens in the piece...."
You contend that classification of the imported machinery
should be based on its actual use and the regulations found in
section 10.133, Customs Regulations (19 CFR 10.133), and not by
its principal use pursuant to Additional U.S. Rule of
Interpretation 1(a), HTSUS. You state that the actual use of the
wood pulp defibrators and the forming and transfer sections of
the air laid dry forming machines is for the production of paper
and, therefore should be classified in heading 8439, HTSUS. You
state that the main difference in conventional processing and air
laid processing is the lack of water when preparing the pulp for
further processing in the production of paper. You continue by
stating that in order for the imported machinery to process
other raw materials than pulp into a nonwoven, it would have to
be modified greatly. You also note that conventional, wet laid
paper machinery can also be altered in order to produce
nonwovens.
ISSUE:
Are the wood pulp defibrator machines and forming and
transfer sections of an air laid dry forming machine properly
classified under heading 8439, HTSUS, as "Machinery for making
pulp of fibrous cellulosic material or for making or finishing
paper or paperboard...," or under headings 8479 and 8449, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...." Classification is
based upon the condition of the articles at the time of
importation. United States v. Citroen, 223 U.S. 407 (1911).
The machinery at issue is properly classified within Chapter
84, making the Chapter 84 notes applicable to this
classification. Note 7, Chapter 84, HTSUS, states that
A machine which is used for more than one purpose is, for
the purposes of classification, to be treated as if its
principal purpose were its sole purpose.
...a machine the principal purpose of which is not described
in any heading or for which no one purpose is the principal
purpose is, unless the context otherwise requires, to be
classified in heading 8479....
You contend that classification of the defibrating machines
and the forming and transfer sections of the air laid dry forming
machine should be based on the actual use of the machinery and
pursuant to the regulations found in 19 CFR 10.133. However,
headings 8439 and 8449, HTSUS, are not actual use provisions.
These headings are governed by Additional U.S. Rule of
Interpretation 1(a) which states that "a tariff classification
controlled by use (other than actual use) is to be determined in
accordance with the use in the United States at, or immediately
prior to, the date of importation of goods of that class or kind
to which the imported goods belong, and the controlling use is
the principal use."
Defibrator Machines
You contend that the defibrator is properly defined as a
refiner which is a machine for making pulp of fibrous cellulosic
material classifiable within heading 8439, HTSUS. Explanatory
Note (EN) 84.39(I)(E) of the Harmonized Commodity and Description
Coding System (HCDCS) describes refiners as:
These usually comprise a cone shaped case with internal
revolving bars which break up any large fibres or lumps and
allow the stock that is already sufficiently beaten to pass
straight through.
HCDCS, Vol. 3, p. 1228. The Explanatory Notes, although not
dispositive, are to be looked to for the proper interpretation of
the HTSUS. 54 Fed. Reg. 35127, 35128 (August 28, 1989).
The defibrator machines at issue are not similar to the
refiner which is classified within heading 8439, HTSUS. The
defibrator does not perform an analogous function to that
performed by the refiner. Refiner machines are used to develop
or modify pulp fibers in an optimal manner for the demands of the
particular paper making furnish. Refining and defibering are
usually considered to be separate operations. See, Handbook For
Pulp & Paper Technologists, Prepared under the direction of the
Joint Textbook Committee of the Paper Industry.
Pursuant to EN 84.39 (I)(E), the material processed through
the refiner in the production of pulp is stock. "Stock" has
been defined as a admixture of water, coarse pulp, and impurities
of all kinds. Bird Machine Co., v. United States, 51 CCPA 42,
C.A.D. 835 (1964). The defibrator at issue does not process
stock. It receives previously processed dry pulp which has been
formed into a continuous sheet. The function of the defibrator
in breaking up the pulp sheet is not to develop or modify the
quality of the pulp fibers, as is performed by a refiner, but
rather it disintegrates the solid pulp sheet into individual
fibers. The defibrator actually changes pulp from one form,
sheet, into another form, loose fibers. The defibrator does not
process stock nor does it perform the function of a refiner and,
therefore, does not meet the terms of heading 8439, HTSUS.
The principal purpose of the defibrator is to break up
previously processed continuous rolls of pulp. As the principal
purpose of the defibrators is not specifically described by any
heading, the defibrators are properly classified pursuant to Note
7, Chapter 84, HTSUS, under heading 8479, HTSUS. Specifically,
the defibrator machines are classified under subheading
8479.89.90, HTSUS, which provides for "Machines and mechanical
appliances having individual functions, not specified or included
elsewhere in this chapter; parts thereof...Other machines and
mechanical appliances...Other...."
The Forming and Transfer Sections
As previously stated classification of headings 8439 and
8449, HTSUS, are not governed by actual use, but by principal
use. Based on the information available, it is still the opinion
of this office that the principal use of the forming and transfer
sections of the air laid dry forming machines in the United
States are for the production of nonwovens.
We note that machines of this type can be used with raw
materials, such as synthetic or natural textile fibers as well as
wood pulp. Note 7, Chapter 84, HTSUS, states that when a machine
is used for more than one purpose, its principal purpose is to be
treated as its sole purpose. The air laid dry forming machine
can be used for more than one purpose. Therefore, its principal
purpose is to be treated as its sole purpose. Upon examination
of the information available, the principal purpose of the air
laid dry forming machine is for the production of nonwovens. As
stated in HRL 089053, the proper classification of the forming
and transfer sections of the air laid dry forming machine is
subheading 8449.00.50, HTSUS, which provides for "Machinery for
the manufacture or finishing of felt or nonwovens in the
piece...."
HOLDING:
The defibrator machine is properly classified under
subheading 8479.89.90, HTSUS, as "Machines and mechanical
appliances having individual functions, not specified or included
elsewhere in this chapter; parts thereof...Other machines and
mechanical appliances...Other...," with duty at the rate of 3.7
percent ad valorem.
The forming and transfer sections of the air laid dry
forming machine are properly classified under subheading
8449.00.50, HTSUS, as "Machinery for the manufacture or finishing
of felt or nonwovens in the piece...," with duty at the rate of
4.4 percent ad valorem.
HRL 089053 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division