CLA-2 RR:CR:GC 961365 JAS
Port Director of Customs
10 Causeway Street, Suite 603
Boston, MA 02222-1059
RE: Protest 0401-97-100509; Heading 8419, Reactor Vessel and Agitator/Mixer for Making Latex Through Polymerization; Exothermic Chemical Reaction; Machinery for Treatment of Materials by Change of Temperature; Heading 8479, Other Machines and Mechanical Appliances; Chapter 84, Note 2;
NY 856006 Distinguished
Dear Port Director:
This is our decision on Protest 0401-97-100509, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS), of a reactor vessel/agitator, a
product of Italy, used in making latex. The entries under
protest were liquidated on October 31, 1997, and this protest
timely filed on November 18, 1997.
FACTS:
The apparatus in issue is a reactor vessel/agitator used to
produce a rubber latex emulsion. It consists of a 7,500 gallon
capacity, glass lined, stainless steel pressure vessel or tank
designed to withstand pressure of up to 400 psi. (27 times normal
atmospheric pressure), to which a motor-driven agitator/mixer is
attached to form a single unit. The raw materials, small
chemical molecules or monomers, are pumped into the vessel where
they are mixed together with an unspecified catalyst. This
causes an exothermic chemical reaction in which heat is released
and the monomers unite to form polymers or latex compounds. Cold
water circulates between the walls of the reactor vessel to
dissipate the accumulated heat. The available information
indicates that neither the heat nor the coolness in any way
effects or facilitates the transformation of the monomers.
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The merchandise under protest was entered under a provision
in HTSUS heading 7309 for reservoirs, tanks and similar
containers of iron or steel. Noting the exothermic chemical
reaction, and the cooling effect of the water, the entries were
liquidated under a provision in HTSUS heading 8419, for
machinery, whether or not electrically heated, for the treatment
of materials by a process involving a change of temperature.
In a supplemental submission, dated May 6, 1998,
protestant's representative now asserts that the provision for
machines and mechanical appliances having individual functions,
in heading 8479, HTSUS, represents the appropriate
classification. This is because the two components, the pressure
vessel and the agitator/mixer, perform complementary or
alternative functions, and that "mixing" is the principal
function. He maintains that this apparatus can be used to mix a
variety of products with distinct applications for different
industries. He further asserts that heading 8419 is
inappropriate in this case because any change in temperature that
may result from the interaction of the chemicals is subsidiary to
the mixing function. He cites an administrative ruling for the
proposition that for purposes of heading 8419 heat, when present,
must be essential to the reaction taking place.
The provisions under consideration are as follows:
8419 Machinery..., whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating...or cooling...; parts thereof:
8419.89 Other:
8419.89.90 Other
* * * *
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]:
Other machines and mechanical appliances:
8479.82.00 Mixing, kneading...machines
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8479.89 Other:
8479.89.95 (now 97) Other
ISSUE:
Whether a change of temperature is involved in transforming
these materials; whether the change in temperature is a secondary
function.
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. Chapter 84,
Note 2, HTSUS, states, in part, that a machine answering 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 Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, 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).
Initially, heading 7309 is eliminated from consideration
because the text of that heading specifically excludes reservoirs
or tanks fitted with mechanical or thermic equipment. The
apparatus under protest performs the functions of mixing and
cooling. Relevant ENs at p. 1271 state that heading 8419
encompasses machinery designed to submit materials to a heating
or cooling process in order to cause a simple change of
temperature, or to cause a transformation of the materials
resulting principally from the temperature change. However,
heading 8419 excludes machinery in
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which the heating or cooling, even if essential, is merely a
secondary function designed to facilitate the main mechanical
function of the machine.
In this case, the mechanical function of mixing the
chemicals into rubber latex results in an exothermic reaction
which releases heat. NY 858006, dated November 29, 1990, cited
by the protestant's representative, classified in heading 8419
apparatus similar in function to the apparatus here, but in which
heat in the form of steam was supplied to the process and which
was essential to the chemical reaction taking place. This case
is inapposite and does not support a heading 8419 classification
for the subject apparatus because the available information
indicates the heat in this case is the byproduct of the chemical
reaction and does not effect the transformation of the chemicals
into rubber. Nevertheless, a change of temperature does take
place. The circulating water represents a cooling function which
dissipates accumulated heat which, if left unabated, would
compromise the integrity of the rubber. This cooling plays no
part in the transformation of the chemicals into rubber, but it
does represent another change of temperature. The evidence
indicates that excessive heat buildup resulting from the initial
exothermic reaction would damage the rubber latex and that the
cooling effect of the circulating water is necessary to dissipate
this heat. There is no evidence from which we can conclude that
the cooling action, while essential, is secondary to the main
mechanical function performed by the agitator/mixer. For these
reasons, we conclude that the reactor vessel/agitator is
machinery or plant of heading 8419.
Heading 8479 is restricted to machinery having individual
functions which is not excluded by any relevant HTSUS section or
chapter note, and which is not covered more specifically by any
other provision in the Nomenclature. ENs at p. 1423 include in
heading 8479 vats or tanks fitted with mechanical devices
(agitators, etc.), and which are not identifiable as being for
any particular industry and are not apparatus of heading 8419.
The reactor vessel/agitator meets these criteria and is prima
facie described by heading 8479. However, because we have
concluded the apparatus is provided for in heading 8419, Chapter
84, Note 2, HTSUS, eliminates heading 8479 from consideration.
HOLDING:
Under the authority of GRI 1, the reactor vessel/agitator is
provided for in heading 8419. It is classifiable in subheading
8419.89.90, HTSUS.
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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 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
Commercial Rulings Division