CLA-2 RR:TC:MM 959996 JAS
Port Director of Customs
610 S. Canal Street
Chicago, IL 60607
RE: PRD 3901 -96-100642; Tube Separator HD Cleaner, Mechanical Separato r, Rotor-Induced Cleaner, Machine Consisting of a Cylindrical Reverse Cleaner and Centrifuge; Apparatus for Removing Contaminants from Waste Paper Pulp, Heading 8439, Machinery for Making Pulp of Fibrous Cellulosic Material; Chapter 84, Note 2; Composite Machine, Section XVI, Note 3, HQ 958936; GRI 3(b), GRI 6
Dear Port Director:
This is our decision on Protest 3901-96-100642, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS) of the Tube Separator HD Cleaner
(TS), a product of Japan. The entry under protest was liquidated
on December 29, 1995, and this protest timely filed on March 26,
1996.
FACTS:
The TS is used in the papermaking industry and consists of a
cylindrical reverse cleaner and a smaller centrifuge or rotor-induced cleaner which is said to be an adjunct to the larger
reverse cleaner. The reverse cleaner has no motor, rotor or
impeller. Diagonal projection of the pulp stock under low inlet
pressure circulates the particles within the chamber. Usable
fibers are removed through an outlet in the reverse cleaner while
the rejected pulp is sent to the centrifuge for further refining
and separating of usable pulp. The centrifuge is cone-shaped and
utilizes a motor, rotor and impellers to induce centrifugal force
by mechanically creating a vortex. This collects and removes
unusable fibers of higher specific gravity in a downward
direction which exit through valves at the bottom of the cone.
Thus, both components are claimed to operate on different
physical principles but function in sequence to mechanically - 2 -
separate dirt and contaminants from waste paper pulp through
mechanical separation during the stock preparation phase of
making recycled paper.
The TS was entered under a provision of HTS heading 8439 for
parts of machinery for making paper or paperboard. Counsel for
the protestant makes an alternative claim under a different
provision of heading 8439, as machinery for making pulp of
fibrous cellulosic material. You found the TS to be a centrifuge
and liquidated the entry under a provision of heading 8421 for
centrifuges.
The provisions under consideration are as follows:
8421 Centrifuges...; filtering or purifying machinery and apparatus, for liquids or gases;...:
Centrifuges...:
8421.19.00 Other
Filtering or purifying machinery and apparatus for liquids:
8421.29.00 Other
* * * *
8439 Machinery for making pulp of fibrous cellulosic material or for making or finishing paper or paperboard (other...; parts thereof:
8439.10.00 Machinery for making pulp of fibrous cellulosic material
Parts:
8439.99.10 Other:
- 3 -
ISSUE:
Whether the TS is a composite machine for tariff purposes;
whether it is filtering or purifying machinery or apparatus of
heading 8421.
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.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding, and therefore
not dispositive, the ENs provide a commentary on the scope of
each heading of the Harmonized System and are thus useful in
ascertaining the classification of merchandise under the System.
Customs believes the ENs should always be consulted. See T.D.
89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Counsel maintains that the essential character of the TS is
imparted by the reverse cleaner because this large chamber
comprises approximately 90 percent of the volume of the TS and 85
percent of its value. In addition, 95 percent of the usable
fibers are removed in the reverse cleaner. Counsel concludes
that the TS utilizes filtering functions as part of the overall
process of pulp making, which is the basis of the claimed
classification in subheading 8439.99.10, HTSUS. Counsel does not
elaborate on the alternative claim under subheading 8439.10.00,
HTSUS.
Chapter 84, Note 2, HTSUS, states that subject to the
operation of Note 3 to Section XVI, a machine or appliance which
answers to a description in one or more of the headings 8401 to
8424 and at the same time to a description in one or more of the
headings 8425 to 8480 is to be classified under the appropriate
heading of the former group and not the latter. The record here
supports a conclusion that by function and design the TS is
described both by heading 8421 and by heading 8439. The issue,
- 4 -
then, is the interpretation of Note 3 to Section XVI. In our
opinion, the TS is not a composite machine as it does not perform
two or more complementary or alternative functions, as the note
requires. Both components of the TS effectively separate solid
or semi-solid particles from liquids in pulp slurries. These are
not complementary functions - they are the same function
performed in sequence. By contrast, relevant ENs, in the third
paragraph on p. 1133, give as an example of composite machines an
industrial furnace (heading 84.17 or 85.14) combined with lifting
or handling machinery (84.28). These machines perform different
functions but are classifiable in headings 84.17 or 85.14 because
both contribute to the function performed by the furnace. For
these reasons, we conclude that the TS is not a composite machine
under Section XVI, Note 3, which renders the remainder of Chapter
84, Note 2 operative. See HQ 958936, dated October 17, 1996, on
substantially similar issues. For the stated reasons, the TS is
a good of heading 8421.
GRI 6 permits us to compare subheadings within the same
heading, provided that only subheadings at the same level are
comparable. Under Rule 6, the relative, section, chapter and
subchapter notes apply, unless the context otherwise requires.
Applying GRI 3(a) at the subheading level, the TS is prima facie
classifiable both in subheading 8421.19.00 and in subheading
8421.29.00, each of which describes part only of the good. These
subheadings, therefore, are deemed to be equally specific. Under
GRI 3(b), we agree with counsel's contention, for the reasons he
gives, that the reverse cleaner component of the TS imparts the
essential character to the whole. The TS is therefore to be
classified as if consisting only of the reverse cleaner which is
filtering or purifying apparatus.
HOLDING:
Under the authority of GRI 1, applied at the subheading
level by GRI 6, the Tube Separator HD Cleaner (TS) is provided
for in heading 8421. It is classifiable in subheading
8421.29.00, HTSUS. Since the rate of duty under this provision
is the same as the liquidated rate, the protest should be DENIED.
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 - 5 -
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