CLA-2 CO:R:C:M 950352 LTO

District Director of Customs
Charleston, South Carolina

RE: Protest No. 1601-0-000267; Propeller Circulators and Dilution Nozzles; EN 84.24; EN 84.39; HQ 085842; A. N. Deringer, Inc. v. United States; 8439.10.00; 8439.91.90; 8479.90.80

Dear Sir:

This protest concerns the tariff classification of propeller circulators and dilution nozzles under the Harmonized Tariff Schedule of the United States (HTSUS). The circulators and the nozzles were liquidated at the port of Charleston under subheading 8479.90.80, HTSUS, which provides for "[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof . . . [p]arts . . . [o]ther." The protestant contends that the propeller circulator should be classified under subheading 8439.10.00, HTSUS, which provides for " . . . [m]achinery for making pulp of fibrous cellulosic material," and that the dilution nozzle should be classified under subheading 8439.91.90, HTSUS, " . . . [p]arts . . . [o]f machinery for making pulp of fibrous cellulosic materials . . . [o]ther."

FACTS:

The propeller circulator is a component of a high consistency, downflow bleach tower. Bleach towers are used during the process of making cellulosic pulp. Pulp, which is usually brown in color, must undergo bleaching to be made into white paper. In a bleach tower, pulp stock is combined with chemicals and heat to brighten the pulp fibers which are a component of the stock. The propeller circulator is used in the dilution zone of the bleach tower to ensure a thorough agitation - 2 -

of the stock with dilution water so that the stock consistency is reduced from 10-12 percent to 3-4 percent. This reduction is necessary so that the bleach chemicals can be removed from the stock by a separate machine known as a stock washer.

The circulator is made of steel and is composed of a shaft and several propeller-like blades. The shaft passes through an opening in the side of the bleach tower (a seal prevents leakage around the shaft opening) and is powered by an electric motor and V-belt transmission which are located on the outside of the bleach tower. The circulators are imported without their motors.

The dilution nozzle is also used in the dilution zone of the bleach tower. The nozzle is one of the components of the water distribution system within a bleaching tower. The other components are: a filtrate chest (water reservoir), a pump, piping, and the flow control valves. The product is designed specifically to be used in diluting pulp with dilution liquid.

The principal parts of the nozzle are the spring housing, the inlet housing and the nozzle head. Fitted between the spring housing and the inlet housing is a membrane which steers the nozzle head.

ISSUE:

What is the proper classification for the propeller circulators and the dilution nozzles under the 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 . . . ."

1. Propeller Circulator

Heading 8439, HTSUS, provides for "[m]achinery for making pulp of fibrous cellulosic material or for making or finishing paper or paperboard (other than the machinery of heading 8419); parts thereof." The Harmonized Commodity Description and Coding Explanatory Note (EN) 84.39, pg. 1227, states that this heading "covers machinery for making fibrous cellulosic pulp from various cellulosic materials (wood, esparto grass, straw, rags, old rope, waste paper, etc.) whether the pulp is for paper or paperboard making or for other purposes . . . ." Bleach towers are used during the process of making cellulosic pulp. Pulp, which is

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usually brown in color, must undergo bleaching to be made into white paper. In a bleach tower, pulp stock is combined with chemicals and heat to brighten the pulp fibers which are a component of the stock. Thus, the bleach towers would be classifiable under Heading 8439, HTSUS.

Subheading 8439.91, HTSUS, provides for "[p]arts . . . [o]f machinery for making pulp of fibrous cellulosic materials." The propeller circulator is a component of the high consistency downflow bleach towers, which are classifiable under Heading 8439, HTSUS. The propeller circulator is used in the dilution zone of the bleach tower to ensure a thorough blending of the pulp stock with dilution water so that the stock consistency is reduced from 10-12 percent to 3-4 percent. The circulator is a part of machinery for making pulp of fibrous cellulosic materials, and is classifiable under subheading 8439.91, HTSUS. Thus, the only issue with regard to the propeller circulator that remains is whether it can be considered a "stock-treating part." Subheading 8439.91.10, HTSUS, provides for "[p]arts . . . [o]f machinery for making pulp of fibrous cellulosic materials . . . [b]ed plates, roll bars and other stock-treating parts." In A. N. Deringer, Inc. v. United States, C.D. 2681, the court stated that "[t]he least that can be expected of a process to qualify it as 'treatment' is some action upon stock which changes its form or composition." While considering the classification of a stock agitator, the court concluded that where stock undergoes no change in composition due to the action of a propeller used for agitation, the propeller is not a stock- treating part, holding:

The stock agitator is a stirring device, resembling a hollow airplane propeller, which is used in storage tanks to maintain the homogeneity of the stock. The testimonial record . . . discloses that the function of the agitator is to maintain homogeneity and not to induce it. We are, therefore, of the opinion that the 'stirring' performed by the agitator is not 'stock-treatment' in the tariff sense [emphasis in original].

The circulator at issue, like the stock agitator, is used in a tank-like article known as a bleach tower. Unlike the agitator for a storage tank involved in A. N. Deringer, the circulator does not maintain homogeneity--rather, it actually functions to

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mix the stock and dilution water in a process which reduces stock consistency from 10-12 percent to 3-4 percent. Thus, it effects the consistency of the stock, and is a stock-treating part of the bleach tower. Accordingly, the article is classifiable under subheading 8439.91.10, HTSUS. 2. Dilution Nozzle

Heading 8424, HTSUS, provides for "[m]echanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof." EN 84.24, pg. 1188, states that this heading covers "machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray." The dilution nozzle functions as part of a water distribution system within a bleaching tower to project, disperse or spray liquids. Water or filtrate is pumped from a reservoir through piping and dispersed into the bleach tower through the dilution nozzles by means of control valves.

In HQ 085842, dated March 13, 1990, sprinkler heads for use in ceiling-installed fire extinguishing sprinkler systems were classified under subheading 8424.90.90, HTSUS, which provides for parts of mechanical appliances for projecting, dispersing or spraying liquids. The sprinkler head operated in the system to spray water over the interior of a room to extinguish fires. The system was mechanically operated while the sprinkler head, by itself, was not. Like the sprinkler head, which was a component of the fire extinguishing sprinkler system, the dilution nozzle functions as a component of a water distribution system within the bleach tower system.

Chapter 84, Note 2 requires that articles which can be classified in Heading 8424, HTSUS, as well as in Heading 8439, HTSUS, the provision claimed by the protestant, must be classified in the former heading. Thus, the articles in question are classifiable under subheading 8424.90.90, HTSUS.

HOLDING:

The propeller circulators are classifiable under subheading 8439.91.10, HTSUS, which provides for "[m]achinery for making pulp of fibrous cellulosic material or for making or finishing paper or paperboard (other than the machinery of heading 8419);

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parts thereof . . . [p]arts . . . [o]f machinery for making pulp of fibrous cellulosic materials . . . [b]ed plates, roll bars and other stock-treating parts." The corresponding rate of duty for articles of this subheading is 4.7% ad valorem.

The dilution nozzles are classifiable under subheading 8424.90.90, HTSUS, which provides for "[m]echanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof . . . [p]arts . . . [o]ther." The corresponding rate of duty for articles of this subheading is 3.7% ad valorem.

Since reclassification and reappraisement of the merchandise as indicated above would result in no net duty reduction, you are instructed to deny the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division