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HQ 088501


MAY 16 1991

CLA-2:CO:R:C:M 088501 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8413.70.1000

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.

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.

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.

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

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