HQ 088501
MAY 16 1991
CLA-2:CO:R:C:M 088501 JAS
Margaret R. Polito, Esq.
Coudert Brothers
200 Park Avenue
New York, N.Y. 10166
RE: Stock Pumps for Pulp and Paper Making Machinery; Actual Use
Dear Ms. Polito:
In your letter of December 11, 1990, on behalf of Ahlstrom
Pumps Inc., you inquire as to the tariff classification of seven
(7) centrifugal pumps from Finland, used in the papermaking
process. Our ruling follows.
FACTS:
The articles in issue here are the centrifugal pump series
designated APT, EPT, NPT, LRS, MC, LFG, and Z, concerning which
you make the following statements: in a papermaking plant
different types of pumps are used for different purposes such as
introducing water into the stock tank, pumping cooking liquor,
and moving stock from the digester to the stock tank; none of the
pumps in issue are designed to, nor do they in fact pump water or
chemicals alone as general purpose ANSI pumps are used for this
purpose; a pump which may be attached to the digester to
transfer combinations of spent cooking liquor, large sized
impurities and partially dissolved wood chips is a stock pump;
and finally, these pumps are characterized, in part, by specially
designed impeller blades which restrict their use to pumping
stock.
You maintain that all units in each of these pump series are
principally used to pump "stock", as that term is commonly
understood, and that the duty-free provision for stock pumps
imported for use with machines for making cellulosic pulp, paper
or paperboard, in subheading 8413.70.1000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), represents the
correct classification.
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ISSUE:
Whether mechanical devices that pump paper stock or slurry
are pumps for liquids of heading 8413; whether the provision in
subheading 8413.70.1000 is governed by actual use; whether
various admixtures of spent cooking liquors, dirt and impurities
and quantities of pulp fibers are regarded as "stock" for tariff
purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUSA in accordance
with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Regarding the first issue, the Explanatory Notes (ENs)
constitute the Customs Cooperation Council's official
interpretation of the Harmonized System. They provide a
commentary on the scope of each heading of the Harmonized System
and are thus useful in ascertaining the classification of goods
under the System. Relevant ENs indicate that heading 8413 covers
most machines and appliances for raising or otherwise
continuously displacing volumes of liquids (including molten
metal and wet concrete). Therefore, paper pulp or slurry and
other viscous materials which are nevertheless capable of free or
independent flow qualify as liquids for purposes of heading 8413.
Specifically, wood pulp, a mixture of solids in water, is
regarded as a liquid in a related [item 661.95, TSUS] context.
Noss Company v. United States, 7 CIT 111 (1984).
Regarding the second issue, submitted literature is
inconclusive in defining design characteristics to establish use.
The NPT series has a recessed impeller, making it suitable for
pumping slurries containing spherical solids while the MC series
can handle stocks ranging from 8 to 15 percent consistency. The
APT series has stock treating features but these are not
described. However, the EPT series is advertised for hot liquid
applications and the LRS is a low speed, high pressure pump
series for make up liquor in digester service. The service
applications of the LFG and Z series are not described.
In our opinion, subheading 8431.70.1000 imposes actual use
requirements. The provision expressly declares that the pumps
must be imported for use with machines for making cellulosic
pulp, paper or paperboard. However, it is evident that not all
pumps imported for such use are covered, only "stock" pumps.
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Because in a pulp or paper mill not every pump designed or
designated for stock transfer is so used, the test of use must be
applied to determine whether a pump is in fact a stock pump.
Therefore, reading the entire provision in para materia, it
logically follows that the provision in subheading 8431.70.1000
encompasses only those mechanical devices actually used to pump
stock and which are imported for use with machines for making
cellulosic pulp, paper or paperboard.
Regarding the third issue, absent a contrary legislative
intent, tariff terms are to be construed in accordance with their
common and commercial meanings which are presumed to be the same.
Stock has been judicially determined to be "an admixture of
water, coarse pulp and impurities of all kinds when present."
Bird Machine Company v. United States, C.D. 2362 and 2363, aff'd.
C.A.D. 835 (1964). A consensus of dictionary definitions of the
term denote a "raw material; that out of which something is
manufactured, i.e., paper stock, soap stock." The Dictionary of
Paper provides a more precise definition as "wet pulp of any type
at any stage in the manufacturing process."
Because common meaning is always a matter of law, we must
examine the Bird court's understanding of the term stock in the
context of pulp and paper making. Pulp is either the end product
of a pulp mill or an intermediate product of an integrated paper
mill. In either case, pulp is derived proximately from stock,
that is, stock is treated to make pulp. Therefore, it is the
pumpable slurry which results when wood chips are combined under
pressure in the digester with cooking liquor and water from
condensed steam that is stock. This is because after screening,
washing and further filtering this material is dried into sheets
of pulp which in a pulp mill are either sold in bales or rolls
or, in an integrated paper mill are used to make paper.
We conclude that not every admixture of water, coarse pulp
and impurities qualifies as stock but only such admixtures
proximately used to make pulp. Therefore, pumps which transfer
the pumpable slurry from the digester to the screening and drying
apparatus qualify as stock pumps, whereas pumps which transfer
black cooking liquor containing impurities and random quantities
of pulp fibers from the digester to the causticizer or
evaporator for recycling are not stock pumps because there is no
evidence that it is commercially feasible to use these fibers to
make pulp. The fibers are screened out not to make pulp but to
maximize the evaporator's efficiency and for environmental
reasons.
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HOLDING:
The provision in subheading 8431.70.1000 is governed by
actual use such that the provisions of section 10.131 through
section 10.139, Customs Regulations, apply. Proof that any pump
entered under this provision has been actually used to pump stock
as described above must be submitted within 3 years from the date
of entry or withdrawal from warehouse for consumption.
Sincerely,
John Durant, Director
Commercial Rulings Division