CLA-2 CO:R:C:M 088506 AJS

District Director
U.S. Customs Service
Port of Milwaukee
P.O. Box 37260
Milwaukee, WI 53237-0260

RE: Protest No. 3701-90-000063; screen plate; Subheading 8439.91.10; Subheading 8439.91.90; stock-treating parts; Bird Machine Company v. United States; A.N. Deringer, Inc. v. United States; H. Rep. No. 100-576 (1988).

Dear Regional Director:

Protest for further review number 3701-90-000063 dated 10/29/90, was filed against the classification of screen plates.

FACTS:

The subject article is a screen plate for a dry end pulper. Pulpers, also known as hydrapulpers, are machines used to disintegrate dry pulp or waste paper into stock. They basically consist of a large tank equipped with a rotating disk or rotor located over an extraction or screen plate. The shearing action of the rotor causes bales of pulp or waste paper to disintegrate into individual fibers which, together with water that is added to the tank, results in stock. This stock is then discharged through the screen plate, a large metal plate containing many small holes. It is stated that the function of this plate is to strain the stock, and thus prevent large pieces of stock from leaving the pulper.

ISSUE:

Whether the subject screen plate is properly classifiable within subheading 8439.91.10, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "[p]arts:

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[o]f machinery for making pulp of fibrous cellulosic materials: [b]ed plates, roll bars and other stock-treating parts."; or classifiable within subheading 8439.91.90, HTSUSA, which provides for other parts of machinery for making pulp of fibrous cellulosic materials.

LAW AND ANALYSIS:

The Area Director classified the subject screen plate within subheading 8439.91.10, HTSUSA, which provides for stock-treating parts of machinery for making pulp of fibrous cellulosic materials. The protestant objects to this classification, and claims that the screen plate has no function in any stock- treating process. Neither the HTSUSA nor the Explanatory Notes to the Harmonized System provides a description of the term "stock-treating".

The Court of Customs and Patent Appeals has interpreted the term "stock-treating" in Bird Machine Company v. United States, 51 CCPA 42 (1964). Bird also involved the classification of screen plates. The Court held that screen plates used to separate wanted fibres from unwanted dirt, knots, chips, knuckles, cockle burrs, wet strength paper, cellophane, paper clips, rubber bands etc., satisfied the description of "other stock-treating parts" for pulp and paper machinery. Bird at 49. Furthermore, the Court described "stock" as the admixture of water, coarse pulp and impurities of all kinds. Bird at 50. In handling stock the Court considered separation of parts thereof to be treatment of stock. Bird at 50.

The Customs Court also addressed the meaning of the phrase "stock-treating" in A.N. Deringer, Inc. v. United States, 56 Cust. Ct. 477 (1966). Deringer involved the classification of a screen plate through which acceptable and usable stock was forced by a spinning rotor. The Court held that these screen plates are classifiable as "stock-treating parts" for pulp and paper machinery. Deringer at 483. The Court stated that it found insufficient reason to change the conclusion in Bird that "a screen plate is a stock-treating part . . . that separation of pulp fibers is stock treatment'." Deringer at 483.

While these decisions under the Tariff Schedules of the United States (TSUS) are not binding under the HTSUSA, Congress has indicated that prior cases must not be disregarded in applying the HTSUSA. The conference report to the Omnibus Trade Bill, states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[USA], particularly where the nomenclature previously interpreted in those decisions remain unchanged and no dissimilar interpretation is required by the text of the HTS[USA]." H. Rep.

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No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988). The Bird and Deringer decisions satisfy these requirements. They also involved the interpretation of the text "other stock-treating parts" for pulp and paper machinery. In addition, the text of the HTSUSA does not require a different interpretation of this term. Accordingly, we find the interpretation rendered in Bird and Deringer of the term "other stock-treating parts" instructive in this instance.

Applying the interpretation of "other stock-treating parts" reached in Bird and Deringer to the instant case would lead to a similar result. The subject screen plates are perforated metal plates through which stock is forced by a spinning rotor in order to strain the stock, and thus affecting the composition of the stock. This is exactly the type of device described in Bird and Deringer. Accordingly, the subject screen plates satisfy the description of "other stock-treating parts" provided for within subheading 8439.91.10, HTSUSA. Since classification is appropriate within this subheading, resort to classification as an "other" part within subheading 8439.91.90, HTSUSA, would not be appropriate.

HOLDING:

The subject screen plates are classifiable within subheading 8439.91.10, HTSUSA, which provides for other stock-treating parts. The protest should be denied in full and a copy of this letter should be attached to the Customs Form 19 Notice of Action and forwarded to the protestant.


Sincerely,


John Durant, Director
Commercial Rulings Division