CLA-2 CO:R:C:M 956831 LTO
Mr. Robert L. Eisen
Ms. Karen Bysiewicz
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036-7794
RE: Agitators (horizontal and vertical); HQ 950352 modified; HQ
950445; NY 866505; Additional U.S. Rule of Interpretation
1(a); GRI 2(a); EN 84.39
Dear Mr. Eisen and Ms. Bysiewicz:
This is in response to your letter of June 30, 1994, on
behalf of Ahlstrom Process Equipment, Inc., to Customs in New
York, requesting the classification of chest agitators and
vertical agitators under the Harmonized Tariff Schedule of the
United States (HTSUS). Your letter was referred to this office
for a response. Pursuant to section 625(c)(1), Tariff Act of
1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title
VI (Customs Modernization) of the North American Free Trade
Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057)
(1993), (hereinafter section 625), notice of the proposed
modification of HQ 950352 was published December 7, 1994, in the
Customs Bulletin, Volume 28, Number 49.
FACTS:
The articles in question are horizontal and vertical
agitators. The "Salomix Chest Agitators" [hereinafter, "chest
agitators"] come in two basic models: the "Type STG" and "Type
STB." The chest agitators consist of a shaft, shaft sealing,
impellers, bearings and motor. The shaft is protected by a
conical frame, and lies in a horizontal position once the
agitator is installed in a tank. The main difference between the
STG and STB is that the former possesses a gearbox design, while
the latter has a V-belt drive. All parts coming in contact with
stock are made of acid-proof steel. At importation, neither
model will contain a motor, and will either be fully assembled - 2 -
when imported, or assembled in all respects except that the
impellers may be unattached from the shaft.
The chest agitators are designed for use in the pulp-making
process. They perform three main functions: (1) they keep pulp
stock in motion to prevent sedimentation or changes in
consistency of the stock; (2) they produce a homogeneous mixture
of stock when different stock types, coloring agents or chemicals
are added; and (3) they dilute stock with water to create a
different consistency of stock. All of these functions are
performed on stock or to produce stock. The chest agitators (and
vertical agitators, when used in a pulp or paper-making mill) are
used prior to the processing of pulp into paper in the headbox,
and after the headbox, to return damaged paper to pulp.
The "Salomix Vertical Agitators" [hereinafter "vertical
agitators"] consist of a modular system of components, including
a shaft, impellers, bearing housing and motor. The vertical
agitators have a vertical free shaft--the shaft is placed
vertically in the tank which contains the agitator. The vertical
agitators may be equipped with either a gearbox design, or V-belt
drive.
The vertical agitators will be imported without motors,
either fully assembled or with the impellers and/or shaft
components unassembled to facilitate transport and handling. You
state that the vertical agitators are used to perform the same
functions as the chest agitators, and that they are principally
used to make cellulosic pulp.
ISSUE:
Whether the chest agitators and vertical agitators are
classifiable as machinery for making pulp of fibrous cellulosic
material under subheading 8439.10.00, 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 . . . ." The Harmonized
Commodity Description and Coding System Explanatory Notes (EN)
constitute the Customs Co-operation Council's official
interpretation of the Harmonized System. While not legally
binding, the ENs provide a commentary on the scope of each
heading of the Harmonized System, and are generally indicative of
the proper interpretation of these headings. See T.D. 89-80, 54
Fed. Reg. 35127, 35128 (Aug. 23, 1989).
- 3 -
You contend that the chest agitators and vertical agitators
are classifiable under subheading 8439.10.00, HTSUS, which
provides for machinery for making pulp of fibrous cellulosic
material. EN 84.39, pg. 1227, states that heading 8439, HTSUS,
"covers machinery for making fibrous cellulosic pulp from various
cellulosic materials . . . whether the pulp is for paper or
paperboard making or for other purposes . . . ."
1. Chest Agitators
The physical characteristics and design features demonstrate
that the chest agitators are used only for processing pulp. They
have a horizontal shaft, common to the pulp industry, whereas
agitators used in other industries usually have vertical shafts.
Moreover, the chest agitators have propellers and shafts
developed specifically for the agitation of fibrous stock that
agitators for other industries would not have. The propellers
are sturdily built to withstand the agitation of pulp, which
consists of a thick suspension of wood fibers and water. They
also possess a smooth form that prevents fibers from adhering to
sharp corners of the propeller blades. Additionally, the chest
agitators have a shaft that is protected by a conical frame, a
design feature unique to the pulp industry, which serves to
prevent shaft failures and vibrations caused by large volumes of
stock impacting the agitator shaft during use. Finally, all
parts of the chest agitator coming in contact with the pulp are
made of acid-proof steel, a feature adapted to the pulp industry
because of the chemicals used in the pulp-making process.
It is our opinion that the chest agitators are principally
used for making pulp. See Additional U.S. Rule of Interpretation
1(a); HQ 950445, dated February 3, 1992. Accordingly, they are
classifiable under heading 8439, HTSUS, which provides for
machinery for making pulp of fibrous cellulosic material, and
parts thereof.
In HQ 950352, dated January 8, 1992, Customs considered the
classification of propeller circulators used in bleach towers.
These circulators were composed of a steel shaft, several
propeller-like blades, shaft sealing, a v-belt transmission, and
were imported without a motor. We determined that the propeller
circulators were parts of bleach towers and were classifiable
under subheading 8439.91, HTSUS, which provides for stock-
treating parts of machinery for making pulp of fibrous cellulosic
materials, because they reduced stock consistency by mixing stock
and dilution water.
The propeller circulators, like the chest agitators, are
independent machines for the production of pulp stock. Both have
their own power source and perform distinct operations on stock.
Both are used at various stages in the pulp-making process. For
example, the chest agitators are used prior to the processing of - 4 -
pulp into paper in the headbox, and after the headbox, to return
damaged paper to pulp. It is therefore our opinion that the
chest agitators (and propeller circulators) are pulp-making
machinery, rather than a part of such machinery.
At importation, neither model of the chest agitator will
contain a motor, and will either be fully assembled when
imported, or assembled in all respects except that the impellers
may be unattached from the shaft.
GRI 2(a) provides as follows:
Any reference in a heading to an article shall be taken
to include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete
or unfinished article has the essential character of
the complete or finished article. It shall also include
a reference to that article complete or finished (or
falling to be classified as complete or finished by
virtue of this rule), entered unassembled or
disassembled.
The incomplete chest agitators, imported without motors,
consist of a shaft, shaft sealing, impellers and bearings. It is
our opinion that, as imported, the chest agitators have the
essential character of a complete agitator. Accordingly, the
incomplete chest agitators are classifiable, according to GRI
2(a), under heading 8439.10.00, HTSUS, which provides for
machinery for making pulp of fibrous cellulosic material.
Moreover, they remain classifiable under this provision, even if
imported with the impeller detached from the shaft. HQ 950352 is
modified accordingly.
2. Vertical Agitators
You contend that the vertical agitators are used to perform
the same functions as the chest agitators, and are principally
used to make cellulosic pulp. You also claim that the vertical
agitators will be sold only to the pulp and paper-making
industry. However, sales literature supplied with your request
indicates that the vertical agitators are capable of use in a
variety of equipment, including storage tanks, production
vessels, reactors, dissolvers and fermenters. In addition, the
literature indicates that they can be supplied with various types
of impellers, such as a paddle, propeller, turbine, dissolver or
anchor, depending on the process requirements. The following
process applications mentioned in the literature are general in
nature:
- to suspend solids, liquids or gases;
- to dissolve solids in liquids; - 5 -
- to equalize concentrations;
- to blend miscible liquids;
- to keep slurries homogenous;
- to prevent sedimentation.
You contend that the vertical agitators are similar to the
chemical mixer of NY 866505, dated September 16, 1991, which was
classified under subheading 8439.10.00, HTSUS. The vertical
agitators are not similar to chemical mixers used in the pulp
bleaching process, such as the mixers of NY 866505, as such
mixers are not capable of performing the various functions
ascribed to the vertical agitators.
It is our opinion that the vertical agitators--general
purpose agitators--are not principally used for making pulp. See
Additional U.S. Rule of Interpretation 1(a). The vertical
agitators, even if sold only to pulp and paper mills, can be used
in mill applications not directly involved in the manufacture of
pulp, such as chemical recovery and wastewater treatment. The
vertical agitators lack any special features, such as the
specially designed acid proof steel propellers and conical frames
found on the chest agitators, which distinguish them from
agitators in general. Accordingly, the vertical agitators cannot
be classified under heading 8439, HTSUS, and are classifiable,
according to GRI 2(a), under subheading 8479.82.00, HTSUS, which
provides for mixing, kneading, crushing, grinding, screening,
sifting, homogenizing, emulsifying or stirring machines, not
specified or included elsewhere in chapter 84.
HOLDING:
The Salomix Chest Agitator is classifiable under subheading
8439.10.00, HTSUS, which provides for machinery for making pulp
of fibrous cellulosic material. The corresponding rate of duty
for articles of this subheading is free.
The Salomix Vertical Agitator is classifiable under
subheading 8479.82.00, HTSUS, which provides for mixing,
kneading, crushing, grinding, screening, sifting, homogenizing,
emulsifying or stirring machines, not specified or included
elsewhere in chapter 84. The corresponding rate of duty for
articles of this subheading is 3.7% ad valorem.
HQ 950352, dated January 8, 1992, is hereby modified. In
accordance with section 625, this ruling will become effective 60
days after publication in the Customs Bulletin. Publication of
rulings or decisions pursuant to section 625 does not constitute - 6 -
a change of practice or position in accordance with section
177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division