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HQ 950445


February 3, 1992

CLA-2 CO:R:C:M 950445 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90; 8449.00.50

Pentti Pirinen
Manager
United Paper Mills Ltd.
Walkisoft Engineering
P.O. Box 40 SF-37601 Valkeakoski
FINLAND

RE: Reconsideration of 089053; wood pulp defibrator machines and forming sections and transfer section of air laid dry forming machines; EN 84.39 (I)(E); refiner; Note 7, Chapter 84; Additional U.S. Rule of Interpretation 1(a); principal use

Dear Mr. Pirinen:

This is in reference to your letter dated September 12, 1991, requesting reconsideration of Headquarters Ruling Letter (HRL) 089053 dated July 2, 1991, concerning wood pulp defibrator machines and forming and transfer sections of air laid dry forming machines to be imported from Finland.

FACTS:

The merchandise at issue is wood pulp defibrator machines and forming and transfer (press and embossing) sections of an air laid dry forming machine. Air laid dry forming is a process whereby air, instead of water, is used to transport and deposit individual fibers onto a moving belt in order to form them into a continuous sheet or web. The air laid dry forming line consists basically of machines which prepare and feed pulp fibers, and the air laid forming machine. The air laid forming machine consists of forming, compacting, embossing, grinding, drying and reeling sections.

The fiber preparation area consists of a machine to unwind continuous sheets of pulp, a pulp defibrator machine to defibrate the pulp sheets into individual fibers, and an in handling system which is used to blow the pulp fibers into the forming section of the air laid dry forming machine. The forming section consists of two perforated drums rotating inside a housing known as the forming head. The fibers circulate horizontally between the drums and are drawn by means of a vacuum onto a belt which continuously moves beneath the rotating drums. This results in the formation of a continuous fiber web. The web passes through a press where it is compacted, and embossers where a pattern is imparted to the web in order to give it added strength. In the binder application section a latex emulsion is sprayed onto the material so that the fibers will adhere to each other and will not separate when moistened. The drying section is utilized to cure the binder and dry the web, thus increasing its resiliency and tactile qualities. Finally, the web passes through a calender and is wound onto a reel.

HRL 089053 held that the principal purpose of the defibrator is to break up continuous rolls of pulp which is not specifically described by any heading. Pursuant to Chapter 84, Note 7, HTSUS, the defibrators were classified under subheading 8479.89.90, HTSUS, as "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof...Other machines and mechanical appliances...Other...." Additionally, HRL 089053 held that the air laid dry forming machines are of the class or kind of machines used principally in the U.S. for the production of nonwovens. Therefore, the forming and transfer sections are parts of the machines of heading 8449, HTSUS, and were classified under subheading 8449.00.50, HTSUS, as "Machinery for the manufacture or finishing of felt or nonwovens in the piece...."

You contend that classification of the imported machinery should be based on its actual use and the regulations found in section 10.133, Customs Regulations (19 CFR 10.133), and not by its principal use pursuant to Additional U.S. Rule of Interpretation 1(a), HTSUS. You state that the actual use of the wood pulp defibrators and the forming and transfer sections of the air laid dry forming machines is for the production of paper and, therefore should be classified in heading 8439, HTSUS. You state that the main difference in conventional processing and air laid processing is the lack of water when preparing the pulp for further processing in the production of paper. You continue by stating that in order for the imported machinery to process other raw materials than pulp into a nonwoven, it would have to be modified greatly. You also note that conventional, wet laid paper machinery can also be altered in order to produce nonwovens.

ISSUE:

Are the wood pulp defibrator machines and forming and transfer sections of an air laid dry forming machine properly classified under heading 8439, HTSUS, as "Machinery for making pulp of fibrous cellulosic material or for making or finishing paper or paperboard...," or under headings 8479 and 8449, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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...." Classification is based upon the condition of the articles at the time of importation. United States v. Citroen, 223 U.S. 407 (1911).

The machinery at issue is properly classified within Chapter 84, making the Chapter 84 notes applicable to this classification. Note 7, Chapter 84, HTSUS, states that

A machine which is used for more than one purpose is, for the purposes of classification, to be treated as if its principal purpose were its sole purpose.

...a machine the principal purpose of which is not described in any heading or for which no one purpose is the principal purpose is, unless the context otherwise requires, to be classified in heading 8479....

You contend that classification of the defibrating machines and the forming and transfer sections of the air laid dry forming machine should be based on the actual use of the machinery and pursuant to the regulations found in 19 CFR 10.133. However, headings 8439 and 8449, HTSUS, are not actual use provisions. These headings are governed by Additional U.S. Rule of Interpretation 1(a) which states that "a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use."

Defibrator Machines

You contend that the defibrator is properly defined as a refiner which is a machine for making pulp of fibrous cellulosic material classifiable within heading 8439, HTSUS. Explanatory Note (EN) 84.39(I)(E) of the Harmonized Commodity and Description Coding System (HCDCS) describes refiners as:

These usually comprise a cone shaped case with internal revolving bars which break up any large fibres or lumps and allow the stock that is already sufficiently beaten to pass straight through.

HCDCS, Vol. 3, p. 1228. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 28, 1989).

The defibrator machines at issue are not similar to the refiner which is classified within heading 8439, HTSUS. The defibrator does not perform an analogous function to that performed by the refiner. Refiner machines are used to develop or modify pulp fibers in an optimal manner for the demands of the particular paper making furnish. Refining and defibering are usually considered to be separate operations. See, Handbook For Pulp & Paper Technologists, Prepared under the direction of the Joint Textbook Committee of the Paper Industry.

Pursuant to EN 84.39 (I)(E), the material processed through the refiner in the production of pulp is stock. "Stock" has been defined as a admixture of water, coarse pulp, and impurities of all kinds. Bird Machine Co., v. United States, 51 CCPA 42, C.A.D. 835 (1964). The defibrator at issue does not process stock. It receives previously processed dry pulp which has been formed into a continuous sheet. The function of the defibrator in breaking up the pulp sheet is not to develop or modify the quality of the pulp fibers, as is performed by a refiner, but rather it disintegrates the solid pulp sheet into individual fibers. The defibrator actually changes pulp from one form, sheet, into another form, loose fibers. The defibrator does not process stock nor does it perform the function of a refiner and, therefore, does not meet the terms of heading 8439, HTSUS.

The principal purpose of the defibrator is to break up previously processed continuous rolls of pulp. As the principal purpose of the defibrators is not specifically described by any heading, the defibrators are properly classified pursuant to Note 7, Chapter 84, HTSUS, under heading 8479, HTSUS. Specifically, the defibrator machines are classified under subheading 8479.89.90, HTSUS, which provides for "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof...Other machines and mechanical appliances...Other...."

The Forming and Transfer Sections

As previously stated classification of headings 8439 and 8449, HTSUS, are not governed by actual use, but by principal use. Based on the information available, it is still the opinion of this office that the principal use of the forming and transfer sections of the air laid dry forming machines in the United States are for the production of nonwovens.

We note that machines of this type can be used with raw materials, such as synthetic or natural textile fibers as well as wood pulp. Note 7, Chapter 84, HTSUS, states that when a machine is used for more than one purpose, its principal purpose is to be treated as its sole purpose. The air laid dry forming machine can be used for more than one purpose. Therefore, its principal purpose is to be treated as its sole purpose. Upon examination of the information available, the principal purpose of the air laid dry forming machine is for the production of nonwovens. As stated in HRL 089053, the proper classification of the forming and transfer sections of the air laid dry forming machine is subheading 8449.00.50, HTSUS, which provides for "Machinery for the manufacture or finishing of felt or nonwovens in the piece...."

HOLDING:

The defibrator machine is properly classified under subheading 8479.89.90, HTSUS, as "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof...Other machines and mechanical appliances...Other...," with duty at the rate of 3.7 percent ad valorem.

The forming and transfer sections of the air laid dry forming machine are properly classified under subheading 8449.00.50, HTSUS, as "Machinery for the manufacture or finishing of felt or nonwovens in the piece...," with duty at the rate of 4.4 percent ad valorem.

HRL 089053 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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