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HQ 961365




JUNE 24, 1998

CLA-2 RR:CR:GC 961365 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8419.89.90

Port Director of Customs
10 Causeway Street, Suite 603
Boston, MA 02222-1059

RE: Protest 0401-97-100509; Heading 8419, Reactor Vessel and Agitator/Mixer for Making Latex Through Polymerization; Exothermic Chemical Reaction; Machinery for Treatment of Materials by Change of Temperature; Heading 8479, Other Machines and Mechanical Appliances; Chapter 84, Note 2; NY 856006 Distinguished

Dear Port Director:

This is our decision on Protest 0401-97-100509, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a reactor vessel/agitator, a product of Italy, used in making latex. The entries under protest were liquidated on October 31, 1997, and this protest timely filed on November 18, 1997.

FACTS:

The apparatus in issue is a reactor vessel/agitator used to produce a rubber latex emulsion. It consists of a 7,500 gallon capacity, glass lined, stainless steel pressure vessel or tank designed to withstand pressure of up to 400 psi. (27 times normal atmospheric pressure), to which a motor-driven agitator/mixer is attached to form a single unit. The raw materials, small chemical molecules or monomers, are pumped into the vessel where they are mixed together with an unspecified catalyst. This causes an exothermic chemical reaction in which heat is released and the monomers unite to form polymers or latex compounds. Cold water circulates between the walls of the reactor vessel to dissipate the accumulated heat. The available information indicates that neither the heat nor the coolness in any way effects or facilitates the transformation of the monomers.

The merchandise under protest was entered under a provision in HTSUS heading 7309 for reservoirs, tanks and similar containers of iron or steel. Noting the exothermic chemical reaction, and the cooling effect of the water, the entries were liquidated under a provision in HTSUS heading 8419, for machinery, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature.

In a supplemental submission, dated May 6, 1998, protestant's representative now asserts that the provision for machines and mechanical appliances having individual functions, in heading 8479, HTSUS, represents the appropriate classification. This is because the two components, the pressure vessel and the agitator/mixer, perform complementary or alternative functions, and that "mixing" is the principal function. He maintains that this apparatus can be used to mix a variety of products with distinct applications for different industries. He further asserts that heading 8419 is inappropriate in this case because any change in temperature that may result from the interaction of the chemicals is subsidiary to the mixing function. He cites an administrative ruling for the proposition that for purposes of heading 8419 heat, when present, must be essential to the reaction taking place.

The provisions under consideration are as follows:

8419 Machinery..., whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating...or cooling...; parts thereof:

8419.89 Other:

8419.89.90 Other

8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]:

Other machines and mechanical appliances:

8479.82.00 Mixing, kneading...machines

8479.89 Other:

8479.89.95 (now 97) Other

ISSUE:

Whether a change of temperature is involved in transforming these materials; whether the change in temperature is a secondary function.

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. Chapter 84, Note 2, HTSUS, states, in part, that a machine answering 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 Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, 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).

Initially, heading 7309 is eliminated from consideration because the text of that heading specifically excludes reservoirs or tanks fitted with mechanical or thermic equipment. The apparatus under protest performs the functions of mixing and cooling. Relevant ENs at p. 1271 state that heading 8419 encompasses machinery designed to submit materials to a heating or cooling process in order to cause a simple change of temperature, or to cause a transformation of the materials resulting principally from the temperature change. However, heading 8419 excludes machinery in
which the heating or cooling, even if essential, is merely a secondary function designed to facilitate the main mechanical function of the machine.

In this case, the mechanical function of mixing the chemicals into rubber latex results in an exothermic reaction which releases heat. NY 858006, dated November 29, 1990, cited by the protestant's representative, classified in heading 8419 apparatus similar in function to the apparatus here, but in which heat in the form of steam was supplied to the process and which was essential to the chemical reaction taking place. This case is inapposite and does not support a heading 8419 classification for the subject apparatus because the available information indicates the heat in this case is the byproduct of the chemical reaction and does not effect the transformation of the chemicals into rubber. Nevertheless, a change of temperature does take place. The circulating water represents a cooling function which dissipates accumulated heat which, if left unabated, would compromise the integrity of the rubber. This cooling plays no part in the transformation of the chemicals into rubber, but it does represent another change of temperature. The evidence indicates that excessive heat buildup resulting from the initial exothermic reaction would damage the rubber latex and that the cooling effect of the circulating water is necessary to dissipate this heat. There is no evidence from which we can conclude that the cooling action, while essential, is secondary to the main mechanical function performed by the agitator/mixer. For these reasons, we conclude that the reactor vessel/agitator is machinery or plant of heading 8419.

Heading 8479 is restricted to machinery having individual functions which is not excluded by any relevant HTSUS section or chapter note, and which is not covered more specifically by any other provision in the Nomenclature. ENs at p. 1423 include in heading 8479 vats or tanks fitted with mechanical devices (agitators, etc.), and which are not identifiable as being for any particular industry and are not apparatus of heading 8419. The reactor vessel/agitator meets these criteria and is prima facie described by heading 8479. However, because we have concluded the apparatus is provided for in heading 8419, Chapter 84, Note 2, HTSUS, eliminates heading 8479 from consideration.

HOLDING:

Under the authority of GRI 1, the reactor vessel/agitator is provided for in heading 8419. It is classifiable in subheading 8419.89.90, HTSUS.

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 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
Commercial Rulings Division

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