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HQ 958834




MAY 7, 1996

CLA-2 RR:TC:MM 958834 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8413.91.90

Port Director of Customs
700 Doug Davis Drive
Atlanta, GA 30354

RE: PRD 1704-96-100002; Mechanical Seals; Seals Used to Prevent Leakage of Fluids Around Rotating Shafts of Centrifugal Pumps; Parts of Stock Pumps, Parts of Other Pumps, Heading 8413; Machinery Parts N.S.I.E., Heading 8485;
Principal Use, Section XVI, Note 2; Actual Use, Sections 10.133, 10.134,
Customs Regulations; HQ 061761

Dear Port Director:

This is our decision on Protest 1704-96-100002, filed against your classification of mechanical seals for pumps. The entries were liquidated on September 22, and on October 6, 13, 20 and 27, 1995. This protest was timely filed on December 21, 1995.

FACTS:

The articles under protest are end face mechanical seals used to prevent leakage between rotating shafts and other surfaces that are in relative motion. They are suitable for various media, i.e., water, oils, solvents and low consistency pulp. These seals are used, for example, in pulp processing centrifugal pumps in paper mills, as well as with agitators and other process equipment. They are typically of stainless steel or titanium construction with sealing faces of similar metals or other hard substances suited to safely contain corrosive fluids. These seals usually contain cooling and quenching systems to cool and lubricate the seal components to avoid mechanical breakdown and protect against leakage of hazardous liquids.

The seals were entered under a provision in heading 8485, Harmonized Tariff Schedule of the United States (HTSUS), as machinery parts not specified or included elsewhere in Chapter 84. Based on the determination that evidence of the seals' principal use was lacking, your office liquidated the entries under that provision. Counsel for the protestant claims that certain of the seals are actually used with stock - 2 -
pumps in the papermaking industry and should be classified in the appropriate duty-free provision of heading 8413. Counsel makes an alternative claim under a provision in heading 8413 for other pumps based on principal use.

The provisions under consideration are as follows:

8413 Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; parts thereof:

Parts:

8413.91 Of pumps:

8413.91.20 Of stock pumps imported for use with machines for making cellulosic pulp, paper or paperboard...Free

8413.91.90 Other...3 percent ad valorem (1994), 2.4 percent ad valorem (1995), currently 1.8 percent ad valorem

8485 Machinery parts...not specified or included elsewhere in
[chapter 84]:

8485.90.00 Other...5.7 percent ad valorem (1994),
5.4 percent ad valorem
(1995), currently 5 percent ad valorem
ISSUE:

Whether the sole or principal use of the mechanical seals under protest has been established; whether the provision under which the seals were entered is based on actual use.

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. - 3 -

Goods that are parts of machines or apparatus of chapters 84 and 85 are classifiable according to Section XVI, Note 2, HTSUS. The mechanical seals in issue are not goods included in any of the allowable headings of chapters 84 or 85. See Note 2(a). Counsel states, among other things, that although basically designed for use with pumps, some of the seals are fitted for or capable of use in screens, mixers and papermaking machines other than pumps. Submitted literature indicates that in addition to pumps, these seals can be used with other process equipment. Your office determined that the available evidence was insufficient to establish the seals' sole or principal use. See Note 2(b). Principal use, in this context, is the use which exceeds any other single use of the goods. For purposes of this note, there is no issue of class or kind.

Available information includes excerpts from protestant's manual Recommendation for Mechanical Seals in a Sulphate Pulp Mill. This manual describes the sulphate pulping process and the various pumps used in bleaching, washing and cooking operations in the many departments of the mill. The manual recommends only the SB series mechanical seals but acknowledges the SE 1, SE 2, and SEW series as "other possibilities." In addition, an Affidavit from protestant's Applications and Sales Engineer, dated February 23, 1995, attests that the SB1 mechanical seals are used in different types of machines "including stock pumps and pumps other than stock pumps." while the majority of SE 1, SE 2 and SEW series mechanical seals were designed and sold for use and actually used in stock pumps and other pumps. Also, a letter from Elton T. Krogel, a consultant in sealing technology, dated October 4, 1995, attests to the writer's personal knowledge of the uses of the mechanical seals in issue, and states that all but two percent of end face mechanical seals are used in fluid handling industrial centrifugal pumps in the pulp and paper, pharmaceutical, chemical processing, and petro-chemical industries, among others.

Affidavits are normally of little probative value except to the extent that information they contain serves to corroborate evidence already in the file or the affidavit information is otherwise independently verifiable. However, in administrative proceedings, particularly where there is little or no other evidence available and there is no reason to believe the information contained in the affidavits is flawed, incomplete, or otherwise unreliable, Customs has considerable latitude in evaluating that information in a light most favorable to the party seeking relief. In this case, the available evidence leads us to conclude that the mechanical seals under protest are principally used in industrial-type centrifugal pumps. They are therefore goods of heading 8413.

Classification in subheading 8413.91.20, as originally proposed by counsel, is not supported by evidence of principal use, as that provision is one governed by actual use. The phrase "for use with" in subheading 8413.91.20 is the grammatical equivalent - 4 -
of "to be used in" and clearly imposes the requirement of actual use. See HQ 061761, dated March 24, 1980, which declared item 660.96, Tariff Schedules of the United States (TSUS) - the predecessor provision that became subheading 8413.91.20 - as requiring actual use of the goods in papermaking. We find that another judicial decision under the TSUS that counsel cites as interpreting similar "use" language is not instructive in this case because that decision addressed a different provision in another context, and the language of the HTS provision here is otherwise clear.

With respect to those mechanical seals counsel claims are actually used in stock pumps, section 10.133(a), Customs Regulations (19 CFR 10.133(a)), requires as one condition of free entry under an actual use provision, that such use be intended at the time of importation. Section 10.134, Customs Regulations (19 CFR 10.134) states, in relevant part, that the showing of intent as to actual use shall be made by filing with the consumption entry a declaration of intended use or by entering the proper subheading of an HTS actual use provision on the entry form. An examination of the entries under protest indicates that the mechanical seals were not entered under subheading 8413.91.20, nor was the required declaration filed.

HOLDING:

Under the authority of GRI 1, the end face mechanical seals are provided for in heading 8413. For the stated reasons, the protest should be DENIED as to the claim under subheading 8413.91.20. Because the seals are classifiable in subheading 8413.91.90, the protest should be ALLOWED under this provision. 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
Tariff Classification

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