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HQ 957854




August 11, 1995

CLA-2 R:C:M 957854 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8421.29.00, 8421.99.00

District Director
U.S. Customs Service
335 Merchant Street
P.O. Box 1641
Honolulu, Hawaii 96806

RE: Protest 3201-95-100007; Machinery for Sugar Manufacture; Filtration or Purifying Machinery and Apparatus; Ceramic Membrane Filters; Skids; Heading 8438; EN 84.38; Section XVI, Legal Note 2

Dear District Director:

The following is our decision regarding Protest 3201-95-100007, which concerns the classification of certain components of machinery for sugar manufacturing under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The protest involves components for the Applexion system, a sugar manufacturing system, which combines ultra-filtration with ion-exchange to remove impurities and improve the sugar itself. The Applexion system sends clarified sugar cane "juice" through ceramic membrane filters to remove suspended solids, and then softens the cane juice through an ion-exchange system. The ion exchange system apparatus was not part of any of the three entries which are the subject of this protest.

The ultra-filtration apparatus consists of skids and "Kerasep" modules K99. The first entry covered 6 ultrafiltration skids without the Kerasep modules. The skids are made of stainless steel and include the horizontal cylinder and the U-shaped "header-like" caps in addition to the bottom support portion for the Kerasep modules.

The second and third entries covered modules/membranes, labeled as "Kerasep" tubular modules K99, 19 channels-300 KD. The tubular modules are made of metal and contain the ceramic membranes. Each membrane has 19 flow channels, arranged in a circular, concentric configuration through the length of the tubes. The ceramic tube provides a base for a coating of zirconium oxide which is referred to as the "membrane" through which the impurities are filtered out of the sugar cane juice. Each module houses 99 membranes. The modules also contain gaskets, thermometers, valves, and manometers. After importation, the U-shaped "header-like" caps are unbolted from the skid. The modules were attached to the horizontal cylinder on the skids and the U-shaped caps were then re-bolted on top of the modules. The skids were then arranged in a "three-stage feed and bleed continuous system".

The merchandise was entered under subheading 8438.30.00, HTSUS, as machinery not specified or included elsewhere for sugar manufacture. The entries were liquidated on January 6, 1995, under subheading 8421.22.00, HTSUS, as filtering or purifying machinery and apparatus, for liquids (beverages). The protest was timely filed on April 4, 1995.

Classification of the merchandise under subheading 8421.29.00, HTSUS, as other filtering or purifying machinery and apparatus, or under subheading 8421.99.00, HTSUS, as parts of filtering or purifying machinery and apparatus, are also under consideration.

The subheadings under consideration are as follows:

8421: Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof:

8421.22.00: Filtering or purifying machinery and apparatus for liquids: [f]or filtering or purifying beverages other than water. . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.1 percent ad valorem.

8421.29.00: Filtering or purifying machinery and apparatus for liquids: [o]ther
. . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.1 percent ad valorem.

8421.99.00: Parts: [o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.1 percent ad valorem.

8438.30.00 Machinery, not specified or included elsewhere in this chapter, for the industrial preparation or manufacture of food or drink, other than machinery for the extraction or preparation of animal or fixed vegetable fats or oils. . . : [m]achinery for sugar manufacture . . . . .

Goods classifiable under this provision have a general, column one free rate of duty.

ISSUE:

Whether the components for the Applexion System are classifiable as filtering or purifying machinery and apparatus for liquids, or as machinery for sugar manufacture under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The Kerasep modules are made of metal and contain membranes made of ceramic. Legal Note 1(b) to chapter 84, HTSUS, states that: "[t]his chapter does not cover: . . . [a]ppliances or machinery (for example, pumps) or parts thereof, of ceramic material (Chapter 69)". The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). General EN to chapter 84, HTSUS, page 1137, states that:

Since machinery or appliances (for example, pumps) of ceramic material and ceramic parts of machinery or appliances of any material (Chapter 69), laboratory glassware (heading 70.17) and machinery and appliances and parts thereof, of glass (heading 70.19 or 70.20) are excluded from this Chapter, it follows that even if a machine or mechanical appliance is covered, because of its description or nature, by a heading of this Chapter it is not to be classified therein if it has the character of an article of ceramic materials or of glass.

This applies, for example, to articles of ceramic material or of glass, incorporating components of minor importance of other materials, such as stoppers, joints, taps, etc., clamping or tightening bands or collars or other fixing or supporting devices (stands, tripods, etc.).

On the other hand, the following are, as a rule, to be taken to have lost the character of ceramic articles, laboratory glassware, or machinery or appliances and parts thereof, of ceramic material or of glass:

(i) Combinations of ceramic or glass components with a high proportion of components of other materials (e.g., of metal); also articles consisting of a high proportion of ceramic or glass components incorporated or permanently mounted in frames, cases or the like, of other materials.

(ii) Combinations of static components of ceramic material or glass with mechanical components such as motors, pumps, etc., of other materials (e.g., of metal).

The ceramic membranes are incorporated into the metal Kerasep modules along with gaskets, thermometers, valves, and manometers. We find that the ceramic membranes have lost the character of ceramic articles because they are incorporated with a high proportion of other materials (e.g., metal). Therefore, classification of the modules as ceramic articles under chapter 69, HTSUS, is precluded.

The protestant states that the subject components are clarifiable under heading 8438, HTSUS, which provides for machinery for the manufacture of sugar. EN 84.38, pages 1222-1224, states that:

This heading covers machinery, not specified or included elsewhere in this Chapter, for the industrial preparation or manufacture of food or drink (whether for immediate consumption or preserving, and whether for human or animal consumption), but not including machinery for the extraction or preparation of animal or fixed vegetable fats or oils (heading 84.79).

It should, however, be noted that in practice the heading excludes many machines used for these purposes, e.g.:
(d) Centrifuges and filters (heading 84.21). (V) MACHINERY FOR SUGAR MANUFACTURE

The type of machinery used for extracting the sugar juices depends on whether sugar cane or sugar beet is employed. The machines used for extracting the sugar from the juice are, however, much the same in each case.

(A) Machines for extracting the juice from sugar cane, e.g.:

(1) Cutters or defibrators, consisting of a series of double-edged knives which revolve at high speed and thus reduce the cane to long fibres.

(2) Shredders in which the cane is passed between toothed rollers revolving at different speeds and is thereby torn to shreds.

(3) Crushers, which consist essentially of adjustable, corrugated metal rollers. Some machines combine the operations of shredding and crushing.

(4) Roller mills, which usually consist of trains of grooved rollers for extracting the juice from the crushed cane. They normally incorporate feeding and conveyor mechanisms, equipment for spraying water on to the cane during rolling, and maceration baths.
(C) Machines for extracting the sugar from the juice, or for refining the sugar, e.g.:

(1) Sulphiting vessels, provided they incorporate mechanical agitators, but not including those with thermal equipment (heading 84.19).

(2) Crystallising apparatus fitted with slow stirring devices. The syrupy mass ("masse cuite") from the concentration plant is here cooled by the surrounding air, and the crystallisation begun in that plant is completed.

(3) Machines for sawing or breaking sugar into lumps, etc.

The heading excludes:

(a) Defecation vessels, juice concentration plant, vacuum boiling or crystallising pans and other plant of heading 84.19.
(b) Centrifugal separators and filter presses (heading 84.21).

According to EN 84.38, if the subject merchandise is found to be classifiable in another heading, it cannot be classified under heading 8438, HTSUS. The protestant believes that the Applexion system is classifiable under heading 8438, HTSUS, because it combines ultra-filtration with ion-exchange. However, the evidence indicates that the ion-exchange apparatus was not entered with any of the entries subject to the protest. Instead, the ion-exchange was separately fabricated in the continental United States and shipped directly to Hawaii. Under a long-standing principle, Customs classifies merchandise in its condition as entered. Therefore, we must classify each entry separately.

As stated above, the Kerasep modules and the skids are component parts which are used in the manufacture of sugar. Legal Note 2 to Section XVI, HTSUS, provides as follows:

Parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:

(a) Parts which are goods included in any of the headings of Chapter 84 and 85 (other than headings 8485 and 8548) are in all cases to be classified in their respective headings;

(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;

(c) All other parts are to be classified in heading 8485 or 8548.

The second and third entries covered the Kerasep modules which filter the sugar cane "juice" to remove suspended solids. According to the literature provided, this process results in an "ultra-filtration" of the sugar cane "juice". This process is provided for under heading 8421, HTSUS, as filtering or purifying machinery and apparatus for liquids. The protestant states that classification under subheading 8421.22.00, HTSUS, does not apply because the equipment is not used for the processing of beverages. The term "juice" as used in the sugar industry refers to a sugar solution, because at this stage the sugar is in liquid form. Because the sugar cane "juice" is not a beverage, we agree that classification under subheading 8421.22.00, HTSUS, is precluded. Under the authority of Legal Note 2(a) to Section XVI, HTSUS, we find that the Kerasep modules are properly classified under subheading 8421.29.00, HTSUS, as other filtering or purifying machines and apparatus for liquids.

The first entry covered the skids which are made of stainless steel and include the horizontal cylinder and the the U-shaped "header-like" caps in addition to the bottom support portion for the Kerasep modules (hereinafter referred to as "the skid assembly"). According to the information provided, the "header-like" caps were unbolted from the skid. The modules were attached to the horizontal cylinder on the skids and the U-shaped caps were then re-bolted on top of the modules. The skid assembly with the Kerasep modules attached, were then arranged in a "three-stage feed and bleed continuous system". Based upon these facts, we find that the skid assembly acts as the support mechanism for the filtering or purifying apparatus and does not perform any filtering or purifying. Classification of the skid assembly under the principles of Legal Note 2(a) to Section XVI, HTSUS, fails because there is no heading which describes this merchandise. However, the skid assembly is clearly a major component part in the filtration process. Therefore, we find that the skid assembly is suitable for use solely or principally with the Kerasep modules which are attached to the skid assembly's horizontal cylinder and "header-like caps" after importation. Under the authority of Legal Note 2(b) to Section XVI, HTSUS, we find that the skid assembly is classifiable under subheading 8421.99.00, HTSUS, as parts of machinery and apparatus for filtering or purifying.

HOLDING:

The Kerasep modules are classifiable under subheading 8421.29.00, HTSUS, as other filtering or purifying machines and apparatus for liquids. The skid assembly is classifiable under subheading 8421.99.00, HTSUS, as parts of machinery and apparatus for filtering or purifying.

Because reclassification of the merchandise as indicated above will result in the same as the liquidated rate, you should DENY the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of 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 the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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