CLA-2 CO:R:C:M 956831 LTO

Mr. Robert L. Eisen
Ms. Karen Bysiewicz
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036-7794

RE: Agitators (horizontal and vertical); HQ 950352 modified; HQ 950445; NY 866505; Additional U.S. Rule of Interpretation 1(a); GRI 2(a); EN 84.39

Dear Mr. Eisen and Ms. Bysiewicz:

This is in response to your letter of June 30, 1994, on behalf of Ahlstrom Process Equipment, Inc., to Customs in New York, requesting the classification of chest agitators and vertical agitators under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057) (1993), (hereinafter section 625), notice of the proposed modification of HQ 950352 was published December 7, 1994, in the Customs Bulletin, Volume 28, Number 49.

FACTS:

The articles in question are horizontal and vertical agitators. The "Salomix Chest Agitators" [hereinafter, "chest agitators"] come in two basic models: the "Type STG" and "Type STB." The chest agitators consist of a shaft, shaft sealing, impellers, bearings and motor. The shaft is protected by a conical frame, and lies in a horizontal position once the agitator is installed in a tank. The main difference between the STG and STB is that the former possesses a gearbox design, while the latter has a V-belt drive. All parts coming in contact with stock are made of acid-proof steel. At importation, neither model will contain a motor, and will either be fully assembled - 2 -

when imported, or assembled in all respects except that the impellers may be unattached from the shaft.

The chest agitators are designed for use in the pulp-making process. They perform three main functions: (1) they keep pulp stock in motion to prevent sedimentation or changes in consistency of the stock; (2) they produce a homogeneous mixture of stock when different stock types, coloring agents or chemicals are added; and (3) they dilute stock with water to create a different consistency of stock. All of these functions are performed on stock or to produce stock. The chest agitators (and vertical agitators, when used in a pulp or paper-making mill) are used prior to the processing of pulp into paper in the headbox, and after the headbox, to return damaged paper to pulp.

The "Salomix Vertical Agitators" [hereinafter "vertical agitators"] consist of a modular system of components, including a shaft, impellers, bearing housing and motor. The vertical agitators have a vertical free shaft--the shaft is placed vertically in the tank which contains the agitator. The vertical agitators may be equipped with either a gearbox design, or V-belt drive.

The vertical agitators will be imported without motors, either fully assembled or with the impellers and/or shaft components unassembled to facilitate transport and handling. You state that the vertical agitators are used to perform the same functions as the chest agitators, and that they are principally used to make cellulosic pulp.

ISSUE:

Whether the chest agitators and vertical agitators are classifiable as machinery for making pulp of fibrous cellulosic material under subheading 8439.10.00, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ." The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). - 3 -

You contend that the chest agitators and vertical agitators are classifiable under subheading 8439.10.00, HTSUS, which provides for machinery for making pulp of fibrous cellulosic material. EN 84.39, pg. 1227, states that heading 8439, HTSUS, "covers machinery for making fibrous cellulosic pulp from various cellulosic materials . . . whether the pulp is for paper or paperboard making or for other purposes . . . ."

1. Chest Agitators

The physical characteristics and design features demonstrate that the chest agitators are used only for processing pulp. They have a horizontal shaft, common to the pulp industry, whereas agitators used in other industries usually have vertical shafts. Moreover, the chest agitators have propellers and shafts developed specifically for the agitation of fibrous stock that agitators for other industries would not have. The propellers are sturdily built to withstand the agitation of pulp, which consists of a thick suspension of wood fibers and water. They also possess a smooth form that prevents fibers from adhering to sharp corners of the propeller blades. Additionally, the chest agitators have a shaft that is protected by a conical frame, a design feature unique to the pulp industry, which serves to prevent shaft failures and vibrations caused by large volumes of stock impacting the agitator shaft during use. Finally, all parts of the chest agitator coming in contact with the pulp are made of acid-proof steel, a feature adapted to the pulp industry because of the chemicals used in the pulp-making process.

It is our opinion that the chest agitators are principally used for making pulp. See Additional U.S. Rule of Interpretation 1(a); HQ 950445, dated February 3, 1992. Accordingly, they are classifiable under heading 8439, HTSUS, which provides for machinery for making pulp of fibrous cellulosic material, and parts thereof.

In HQ 950352, dated January 8, 1992, Customs considered the classification of propeller circulators used in bleach towers. These circulators were composed of a steel shaft, several propeller-like blades, shaft sealing, a v-belt transmission, and were imported without a motor. We determined that the propeller circulators were parts of bleach towers and were classifiable under subheading 8439.91, HTSUS, which provides for stock- treating parts of machinery for making pulp of fibrous cellulosic materials, because they reduced stock consistency by mixing stock and dilution water.

The propeller circulators, like the chest agitators, are independent machines for the production of pulp stock. Both have their own power source and perform distinct operations on stock. Both are used at various stages in the pulp-making process. For example, the chest agitators are used prior to the processing of - 4 -

pulp into paper in the headbox, and after the headbox, to return damaged paper to pulp. It is therefore our opinion that the chest agitators (and propeller circulators) are pulp-making machinery, rather than a part of such machinery.

At importation, neither model of the chest agitator will contain a motor, and will either be fully assembled when imported, or assembled in all respects except that the impellers may be unattached from the shaft.

GRI 2(a) provides as follows:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

The incomplete chest agitators, imported without motors, consist of a shaft, shaft sealing, impellers and bearings. It is our opinion that, as imported, the chest agitators have the essential character of a complete agitator. Accordingly, the incomplete chest agitators are classifiable, according to GRI 2(a), under heading 8439.10.00, HTSUS, which provides for machinery for making pulp of fibrous cellulosic material. Moreover, they remain classifiable under this provision, even if imported with the impeller detached from the shaft. HQ 950352 is modified accordingly.

2. Vertical Agitators

You contend that the vertical agitators are used to perform the same functions as the chest agitators, and are principally used to make cellulosic pulp. You also claim that the vertical agitators will be sold only to the pulp and paper-making industry. However, sales literature supplied with your request indicates that the vertical agitators are capable of use in a variety of equipment, including storage tanks, production vessels, reactors, dissolvers and fermenters. In addition, the literature indicates that they can be supplied with various types of impellers, such as a paddle, propeller, turbine, dissolver or anchor, depending on the process requirements. The following process applications mentioned in the literature are general in nature:

- to suspend solids, liquids or gases; - to dissolve solids in liquids; - 5 -

- to equalize concentrations; - to blend miscible liquids; - to keep slurries homogenous; - to prevent sedimentation.

You contend that the vertical agitators are similar to the chemical mixer of NY 866505, dated September 16, 1991, which was classified under subheading 8439.10.00, HTSUS. The vertical agitators are not similar to chemical mixers used in the pulp bleaching process, such as the mixers of NY 866505, as such mixers are not capable of performing the various functions ascribed to the vertical agitators.

It is our opinion that the vertical agitators--general purpose agitators--are not principally used for making pulp. See Additional U.S. Rule of Interpretation 1(a). The vertical agitators, even if sold only to pulp and paper mills, can be used in mill applications not directly involved in the manufacture of pulp, such as chemical recovery and wastewater treatment. The vertical agitators lack any special features, such as the specially designed acid proof steel propellers and conical frames found on the chest agitators, which distinguish them from agitators in general. Accordingly, the vertical agitators cannot be classified under heading 8439, HTSUS, and are classifiable, according to GRI 2(a), under subheading 8479.82.00, HTSUS, which provides for mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines, not specified or included elsewhere in chapter 84.

HOLDING:

The Salomix Chest Agitator is classifiable under subheading 8439.10.00, HTSUS, which provides for machinery for making pulp of fibrous cellulosic material. The corresponding rate of duty for articles of this subheading is free.

The Salomix Vertical Agitator is classifiable under subheading 8479.82.00, HTSUS, which provides for mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines, not specified or included elsewhere in chapter 84. The corresponding rate of duty for articles of this subheading is 3.7% ad valorem.

HQ 950352, dated January 8, 1992, is hereby modified. In accordance with section 625, this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute - 6 -

a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division