CLA-2 RR:TC:MM 958834 JAS
Port Director of Customs
700 Doug Davis Drive
Atlanta, GA 30354
RE: PRD 1704-96-100002; Mechanical Seals; Seals Used to Prevent
Leakage of Fluids Around Rotating Shafts of
Centrifugal Pumps; Parts of Stock Pumps, Parts
of Other Pumps, Heading 8413; Machinery Parts N.S.I.E.,
Heading 8485;
Principal Use, Section XVI, Note 2; Actual Use, Sections
10.133, 10.134,
Customs Regulations; HQ 061761
Dear Port Director:
This is our decision on Protest 1704-96-100002, filed
against your classification of mechanical seals for pumps. The
entries were liquidated on September 22, and on October 6, 13, 20
and 27, 1995. This protest was timely filed on December 21,
1995.
FACTS:
The articles under protest are end face mechanical seals
used to prevent leakage between rotating shafts and other
surfaces that are in relative motion. They are suitable for
various media, i.e., water, oils, solvents and low consistency
pulp. These seals are used, for example, in pulp processing
centrifugal pumps in paper mills, as well as with agitators and
other process equipment. They are typically of stainless steel or
titanium construction with sealing faces of similar metals or
other hard substances suited to safely contain corrosive fluids.
These seals usually contain cooling and quenching systems to cool
and lubricate the seal components to avoid mechanical breakdown
and protect against leakage of hazardous liquids.
The seals were entered under a provision in heading
8485, Harmonized Tariff Schedule of the United States (HTSUS), as
machinery parts not specified or included elsewhere in Chapter
84. Based on the determination that evidence of the seals'
principal use was lacking, your office liquidated the entries
under that provision. Counsel for the protestant claims that
certain of the seals are actually used with stock - 2 -
pumps in the papermaking industry and should be classified in the
appropriate duty-free provision of heading 8413. Counsel makes
an alternative claim under a provision in heading 8413 for other
pumps based on principal use.
The provisions under consideration are as follows:
8413 Pumps for liquids, whether or not fitted with
a measuring device;
liquid elevators; parts thereof:
Parts:
8413.91 Of pumps:
8413.91.20 Of stock pumps imported
for use with
machines for making
cellulosic pulp, paper
or paperboard...Free
8413.91.90 Other...3 percent ad
valorem (1994), 2.4
percent ad valorem (1995),
currently 1.8
percent ad valorem
* * * *
8485 Machinery parts...not specified or included
elsewhere in
[chapter 84]:
8485.90.00 Other...5.7 percent ad
valorem (1994),
5.4 percent ad valorem
(1995), currently 5
percent ad valorem
ISSUE:
Whether the sole or principal use of the mechanical seals
under protest has been established; whether the provision under
which the seals were entered is based on actual use.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) 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. - 3 -
Goods that are parts of machines or apparatus of chapters 84
and 85 are classifiable according to Section XVI, Note 2, HTSUS.
The mechanical seals in issue are not goods included in any of
the allowable headings of chapters 84 or 85.
See Note 2(a). Counsel states, among other things, that although
basically designed for use with pumps, some of the seals are
fitted for or capable of use in screens, mixers and papermaking
machines other than pumps. Submitted literature indicates that in
addition to pumps, these seals can be used with other process
equipment. Your office determined that the available evidence was
insufficient to establish the seals' sole or principal use. See
Note 2(b). Principal use, in this context, is the use which
exceeds any other single use of the goods. For purposes of this
note, there is no issue of class or kind.
Available information includes excerpts from protestant's
manual Recommendation for Mechanical Seals in a Sulphate Pulp
Mill. This manual describes the sulphate pulping process and the
various pumps used in bleaching, washing and cooking operations
in the many departments of the mill. The manual recommends only
the SB series mechanical seals but acknowledges the SE 1, SE 2,
and SEW series as "other possibilities." In addition, an
Affidavit from protestant's Applications and Sales Engineer,
dated February 23, 1995, attests that the SB1 mechanical seals
are used in different types of machines "including stock pumps
and pumps other than stock pumps." while the majority of SE 1, SE
2 and SEW series mechanical seals were designed and sold for use
and actually used in stock pumps and other pumps. Also, a letter
from Elton T. Krogel, a consultant in sealing technology, dated
October 4, 1995, attests to the writer's personal knowledge of
the uses of the mechanical seals in issue, and states that all
but two percent of end face mechanical seals are used in fluid
handling industrial centrifugal pumps in the pulp and paper,
pharmaceutical, chemical processing, and petro-chemical
industries, among others.
Affidavits are normally of little probative value except to
the extent that information they contain serves to corroborate
evidence already in the file or the affidavit information is
otherwise independently verifiable. However, in administrative
proceedings, particularly where there is little or no other
evidence available and there is no reason to believe the
information contained in the affidavits is flawed, incomplete, or
otherwise unreliable, Customs has considerable latitude in
evaluating that information in a light most favorable to the
party seeking relief. In this case, the available evidence leads
us to conclude that the mechanical seals under protest are
principally used in industrial-type centrifugal pumps. They are
therefore goods of heading 8413.
Classification in subheading 8413.91.20, as originally
proposed by counsel, is not supported by evidence of principal
use, as that provision is one governed by actual use. The phrase
"for use with" in subheading 8413.91.20 is the grammatical
equivalent - 4 -
of "to be used in" and clearly imposes the requirement of actual
use. See HQ 061761,
dated March 24, 1980, which declared item 660.96, Tariff
Schedules of the United States (TSUS) - the predecessor
provision that became subheading 8413.91.20 - as
requiring actual use of the goods in papermaking. We find that
another judicial decision under the TSUS that counsel cites as
interpreting similar "use" language is not instructive in this
case because that decision addressed a different provision in
another context, and the language of the HTS provision here is
otherwise clear.
With respect to those mechanical seals counsel claims are
actually used in stock pumps, section 10.133(a), Customs
Regulations (19 CFR 10.133(a)), requires as one condition of free
entry under an actual use provision, that such use be intended at
the time of importation. Section 10.134, Customs Regulations (19
CFR 10.134) states, in relevant part, that the showing of intent
as to actual use shall be made by filing with the consumption
entry a declaration of intended use or by entering the proper
subheading of an HTS actual use provision on the entry form. An
examination of the entries under protest indicates that the
mechanical seals were not entered under subheading 8413.91.20,
nor was the required declaration filed.
HOLDING:
Under the authority of GRI 1, the end face mechanical seals
are provided for in heading 8413. For the stated reasons, the
protest should be DENIED as to the claim under subheading
8413.91.20. Because the seals are classifiable in subheading
8413.91.90, the protest should be ALLOWED under this provision.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, you should mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the
date of this letter. Any reliquidation of the entry or entries
in accordance with the decision must be accomplished prior to
mailing the decision. Sixty days from the date of the decision
the Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings
Module in ACS and to the public via the Diskette Subscription
Service, the Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division