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HQ 959996




JULY 24, 1997

CLA-2 RR:TC:MM 959996 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8421.29.00

Port Director of Customs
610 S. Canal Street
Chicago, IL 60607

RE: PRD 3901 -96-100642; Tube Separator HD Cleaner, Mechanical Separato r, Rotor-Induced Cleaner, Machine Consisting of a Cylindrical Reverse Cleaner and Centrifuge; Apparatus for Removing Contaminants from Waste Paper Pulp, Heading 8439, Machinery for Making Pulp of Fibrous Cellulosic Material; Chapter 84, Note 2; Composite Machine, Section XVI, Note 3, HQ 958936; GRI 3(b), GRI 6

Dear Port Director:

This is our decision on Protest 3901-96-100642, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the Tube Separator HD Cleaner (TS), a product of Japan. The entry under protest was liquidated on December 29, 1995, and this protest timely filed on March 26, 1996.

FACTS:

The TS is used in the papermaking industry and consists of a cylindrical reverse cleaner and a smaller centrifuge or rotor-induced cleaner which is said to be an adjunct to the larger reverse cleaner. The reverse cleaner has no motor, rotor or impeller. Diagonal projection of the pulp stock under low inlet pressure circulates the particles within the chamber. Usable fibers are removed through an outlet in the reverse cleaner while the rejected pulp is sent to the centrifuge for further refining and separating of usable pulp. The centrifuge is cone-shaped and utilizes a motor, rotor and impellers to induce centrifugal force by mechanically creating a vortex. This collects and removes unusable fibers of higher specific gravity in a downward direction which exit through valves at the bottom of the cone. Thus, both components are claimed to operate on different physical principles but function in sequence to mechanically - 2 -
separate dirt and contaminants from waste paper pulp through mechanical separation during the stock preparation phase of making recycled paper.

The TS was entered under a provision of HTS heading 8439 for parts of machinery for making paper or paperboard. Counsel for the protestant makes an alternative claim under a different provision of heading 8439, as machinery for making pulp of fibrous cellulosic material. You found the TS to be a centrifuge and liquidated the entry under a provision of heading 8421 for centrifuges.

The provisions under consideration are as follows:

8421 Centrifuges...; filtering or purifying machinery and apparatus, for liquids or gases;...:

Centrifuges...:

8421.19.00 Other

Filtering or purifying machinery and apparatus for liquids:

8421.29.00 Other

8439 Machinery for making pulp of fibrous cellulosic material or for making or finishing paper or paperboard (other...; parts thereof:

8439.10.00 Machinery for making pulp of fibrous cellulosic material

Parts:

8439.99.10 Other:

ISSUE:

Whether the TS is a composite machine for tariff purposes; whether it is filtering or purifying machinery or apparatus of heading 8421.

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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, 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).

Counsel maintains that the essential character of the TS is imparted by the reverse cleaner because this large chamber comprises approximately 90 percent of the volume of the TS and 85 percent of its value. In addition, 95 percent of the usable fibers are removed in the reverse cleaner. Counsel concludes that the TS utilizes filtering functions as part of the overall process of pulp making, which is the basis of the claimed classification in subheading 8439.99.10, HTSUS. Counsel does not elaborate on the alternative claim under subheading 8439.10.00, HTSUS.

Chapter 84, Note 2, HTSUS, states that subject to the operation of Note 3 to Section XVI, a machine or appliance which answers 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 record here supports a conclusion that by function and design the TS is described both by heading 8421 and by heading 8439. The issue,
then, is the interpretation of Note 3 to Section XVI. In our opinion, the TS is not a composite machine as it does not perform two or more complementary or alternative functions, as the note requires. Both components of the TS effectively separate solid or semi-solid particles from liquids in pulp slurries. These are not complementary functions - they are the same function performed in sequence. By contrast, relevant ENs, in the third paragraph on p. 1133, give as an example of composite machines an industrial furnace (heading 84.17 or 85.14) combined with lifting or handling machinery (84.28). These machines perform different functions but are classifiable in headings 84.17 or 85.14 because both contribute to the function performed by the furnace. For these reasons, we conclude that the TS is not a composite machine under Section XVI, Note 3, which renders the remainder of Chapter 84, Note 2 operative. See HQ 958936, dated October 17, 1996, on substantially similar issues. For the stated reasons, the TS is a good of heading 8421.

GRI 6 permits us to compare subheadings within the same heading, provided that only subheadings at the same level are comparable. Under Rule 6, the relative, section, chapter and subchapter notes apply, unless the context otherwise requires. Applying GRI 3(a) at the subheading level, the TS is prima facie classifiable both in subheading 8421.19.00 and in subheading 8421.29.00, each of which describes part only of the good. These subheadings, therefore, are deemed to be equally specific. Under GRI 3(b), we agree with counsel's contention, for the reasons he gives, that the reverse cleaner component of the TS imparts the essential character to the whole. The TS is therefore to be classified as if consisting only of the reverse cleaner which is filtering or purifying apparatus.

HOLDING:

Under the authority of GRI 1, applied at the subheading level by GRI 6, the Tube Separator HD Cleaner (TS) is provided for in heading 8421. It is classifiable in subheading 8421.29.00, HTSUS. Since the rate of duty under this provision is the same as the liquidated rate, 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 - 5 -
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
Appeals Division

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