CLA-2 RR:CR:GC 961691 HMC
Port Director of Customs
P.O. Box 1490
St. Albans, VT 05478
RE: Protest 0201-98-100008; Mineral Dispersion System; Mixing, Kneading, Crushing, Grinding, Screening, Sifting, Homogenizing, Emulsifying or Stirring Machines.
Dear Port Director:
This is our decision on Protest 0201-98-100008, filed against your classification of a mineral dispersion system for talcs or clays. The 1996 entries under protest were liquidated on December 29, 1997, and this protest timely filed on March 4, 1998.
FACTS:
The merchandise under protest is a mineral dispersion system (MDS) for talcs or clays. The MDS is described as a machine used in the papermaking industry to produce a slurry-like mixture from dry mineral pellets (talcs or clays) and water. When the ingredients are mixed to the desired consistency the mixture is introduced into a head box of a papermaking machine as an aid in the papermaking process.
The MDS is approximately 15 feet long, 9.5 feet high and 3.5 feet wide. It consists of a hopper to load the talc pellets, a vibrator to ensure that the pellets “flow,” a screw feeder, numerous valves (globe, solenoid, pressure regulating, control and check), meter sensors, four motors, a speed reducer, three “dispersing”cells, water spray nozzles, and a control panel. A diagram provided by protestant shows the MDS with a common base.
The Protestant states that the MDS’ function is to create a controlled environment in which a dry material (talc) is dispersed in liquid (water) to achieve a desired solution for the purpose of introduction into papermaking machinery to prevent pitch buildup. Controlled amounts of talc are fed into the first of three dispersing cells for mixing with a precise amount of water. The talc solution passes through two other dispersing cells where additional water is added and further mixing occurs. The mixture is constantly monitored to ensure that the predetermined dry-to-wet mix is attained. The final mineral slurry solution is used in the papermaking process as a lubricant type ingredient to prevent buildup of pitch and resins and to neutralize the harmful effects they have on the papermaking machinery.
The merchandise was entered under a provision for other filtering or purifying machinery and apparatus for liquids under subheading 8421.29.00 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the entries were liquidated under subheading 9032.89.60, HTSUS, as other automatic regulating or controlling instruments and apparatus. In a letter, dated October 16, 1997, Protestant claims that the merchandise is classifiable as machinery for making paper or paperboard under subheading 8439.20.00, HTSUS, or, in the alternative, as machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter of subheading 8479.89.97, HTSUS.
The 1996 provisions under consideration are as follows:
8439 Machinery for making pulp of fibrous cellulosic material or for making or finishing paper or paperboard (other than the machinery of heading 8419); parts thereof:
8439.20.00 Machinery for making paper or paperboard...Free
* * * *
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances:
8479.82.00 Mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines...2.2%
8479.89 Other:
Other:
8479.89.97 Other...3.2%
* * * *
9032 Automatic regulating or controlling instruments and apparatus; parts and accessories thereof:
Other instruments and apparatus:
9032.89 Other:
9032.89.60 Other...3.6%
ISSUE:
Whether the MDS is classifiable as other automatic regulating or controlling instruments and apparatus under subheading 9032.89.60, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the 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.
Section XVI, note 1 (m), HTSUS, states that the Section (which includes Chapter 84) does not cover articles of Chapter 90. Note 3 states that
Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s 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 EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
General EN (VI) to Section XVI, HTSUS, at page 1226, states that
(VI) MULTI FUNCTION MACHINES AND COMPOSITE MACHINES
(Section Note 3)
In general, multi function machines are classified according to the principal function of the machine.
...
Composite machines consisting of two or more machines or appliances of different kinds, fitted together to form a whole, consecutively or simultaneously performing separate functions which are generally complementary and are described in different headings of Section XVI, are also classified according to the principal function of the composite machine.
The following are examples of such composite machines: printing machines with a subsidiary machine for holding the paper (heading 84.43); a cardboard box making machine combined with an auxiliary machine for printing a name or simple design (heading 84.41); industrial furnaces combined with lifting or handling machinery (heading 84.17 or 85.14); cigarette making machinery combined with subsidiary packaging machinery (heading 84.78).
For the purposes of the above provisions, machines of different kinds are taken to be fitted together to form a whole when incorporated one in the other or mounted one on the other, or mounted on a common base or frame or in a common housing.
The MDS was liquidated in heading 9032, HTSUS, as automatic regulating or controlling instruments. Protestant contends that the merchandise is not described by heading 9032, but that it is classifiable in heading 8439, or, in the alternative, in heading 8479, HTSUS. We agree with Protestant’s contention that the merchandise is not described by heading 9032.
The MDS is a composite machine. It is made of two or more machines having separate functions described in different headings and fitted together in a common base. It is Customs view that the principal function of the MDS is to mix water and minerals (talcs or clays) to produce a solution that aids in the operation of a papermaking machine. The solution is a lubricant that is added to a papermaking machine to protect it from damage.
Note 6 to Chapter 90, HTSUS, states
6. Heading 9032 applies only to:
(a) Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled; and
(b) Automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled.
We note that the MDS regulates the amount of water needed to add the desired ratio of water to mineral. However, the regulation of water, in this instance, is not the kind of automatic regulation or control contemplated by Note 6 to Chapter 90. The MDS is not an apparatus for automatically controlling the flow, level, pressure or other variables of the water it mixes with clays or talcs. Its main task is to properly disperse minerals, performed by machines like the feed hoppers, conveyors, vibrating screens, and mixers. Thus, the function performed by the MDS is not one described by heading 9032.
Protestant contends that the merchandise is classifiable as machinery for making paper or paperboard under subheading 8439.20.00 , HTSUS. Protestant cites HQ 958300, dated March 12, 1996, to support its contention and states that the MDS is essential to the papermaking process; and that, even though, the machine is not specifically mentioned in the heading or the ENs, like the merchandise in HQ 958300, the MDS is described by heading 8439. We fail to see the nexus between the machine of HQ 958300, the Sym-Sizer, and the subject MDS. The issue in that ruling was whether the merchandise was a papermaking machine or a paper finishing device. The Sym-Sizer, a machine used in the papermaking industry, added “size” to paper web. The facts in that ruling explained that size is a coating consisting primarily of starch which adds strength to the paper sheet, acting like glue to improve the bonding of the fibers to one another. The Sym-Sizer altered the surface characteristics of the paper web before the web was manufactured into salable paper. Customs concluded that the Sym-Sizer was machinery for finishing paper or paperboard under subheading 8439.30.00, HTSUS.
The MDS, in this instance, is not a papermaking or paper finishing machine. The merchandise is not comparable to the Sym-Sizer because that machine was a coating machine that directly applied a coating to the surface of a paper web during the paper manufacturing process. The MDS merely produces a solution which aids in the operation of the papermaking machine, in much the same fashion oil is used to lubricate a machine’s moving parts. Unlike the Sym-Sizer, the MDS does not directly make paper, paperboard or similar raw materials. Therefore, the MDS is not described by heading 8439.
Note 7 to Chapter 84, HTSUS, states that “[s]ubject to note 2 to this chapter and note 3 to section XVI, a machine the principal purpose of which is not described in any heading or for which no one purpose is the principal purpose is, unless the context otherwise requires, to be classified in heading 8479. ...” It is Customs position that the MDS’ purpose of producing a mixture of water and mineral is not described in any other heading of Chapter 84. Therefore, based on the relevant section and chapter notes that instruct to classify the merchandise according to a machine’s principal function and purpose, the MDS is classifiable under subheading 8479.82.00, HTSUS, as mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines.
HOLDING:
Under the authority of GRI 1, the MDS is classifiable in subheading 8479.82.00, HTSUS, as “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines. The 1996 rate of duty is 2.2%.
This protest should be DENIED, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division