HQ 959996

JULY 24, 1997

CLA-2 RR:TC:MM 959996 JAS

CATEGORY: Classification

TARIFF NO.: 8421.29.00

Port Director of Customs

610 S. Canal Street

Chicago, IL 60607

RE: PRD 3901 -96-100642; Tube Separator HD Cleaner, Mechanical Separato
r, Rotor-Induced Cleaner, Machine Consisting of a Cylindrical Reverse
Cleaner and Centrifuge; Apparatus for Removing Contaminants from Waste
Paper Pulp, Heading 8439, Machinery for Making Pulp of Fibrous
Cellulosic Material; Chapter 84, Note 2; Composite Machine, Section XVI,
Note 3, HQ 958936; GRI 3(b), GRI 6

Dear Port Director:

This is our decision on Protest 3901-96-100642, filed

against your classification under the Harmonized Tariff Schedule

of the United States (HTSUS) of the Tube Separator HD Cleaner

(TS), a product of Japan. The entry under protest was liquidated

on December 29, 1995, and this protest timely filed on March 26,

1996\.

FACTS:

The TS is used in the papermaking industry and consists of a

cylindrical reverse cleaner and a smaller centrifuge or rotor-induced
cleaner which is said to be an adjunct to the larger

reverse cleaner. The reverse cleaner has no motor, rotor or

impeller. Diagonal projection of the pulp stock under low inlet

pressure circulates the particles within the chamber. Usable

fibers are removed through an outlet in the reverse cleaner while

the rejected pulp is sent to the centrifuge for further refining

and separating of usable pulp. The centrifuge is cone-shaped and

utilizes a motor, rotor and impellers to induce centrifugal force

by mechanically creating a vortex. This collects and removes

unusable fibers of higher specific gravity in a downward

direction which exit through valves at the bottom of the cone.

Thus, both components are claimed to operate on different

physical principles but function in sequence to mechanically

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separate dirt and contaminants from waste paper pulp through

mechanical separation during the stock preparation phase of

making recycled paper.

The TS was entered under a provision of HTS heading 8439 for

parts of machinery for making paper or paperboard. Counsel for

the protestant makes an alternative claim under a different

provision of heading 8439, as machinery for making pulp of

fibrous cellulosic material. You found the TS to be a centrifuge

and liquidated the entry under a provision of heading 8421 for

centrifuges.

The provisions under consideration are as follows:

8421 Centrifuges\...; filtering or purifying machinery and apparatus,
for liquids or gases;\...:

Centrifuges\...:

8421.19.00 Other

Filtering or purifying machinery and apparatus for liquids:

8421.29.00 Other

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8439 Machinery for making pulp of fibrous cellulosic material or for
making or finishing paper or paperboard (other\...; parts thereof:

8439.10.00 Machinery for making pulp of fibrous cellulosic material

Parts:

8439.99.10 Other:

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ISSUE:

Whether the TS is a composite machine for tariff purposes;

whether it is filtering or purifying machinery or apparatus of

heading 8421.

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.

The Harmonized Commodity Description and Coding System

Explanatory Notes (ENs) constitute the official interpretation of

the Harmonized System. While not legally binding, 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).

Counsel maintains that the essential character of the TS is

imparted by the reverse cleaner because this large chamber

comprises approximately 90 percent of the volume of the TS and 85

percent of its value. In addition, 95 percent of the usable

fibers are removed in the reverse cleaner. Counsel concludes

that the TS utilizes filtering functions as part of the overall

process of pulp making, which is the basis of the claimed

classification in subheading 8439.99.10, HTSUS. Counsel does not

elaborate on the alternative claim under subheading 8439.10.00,

HTSUS.

Chapter 84, Note 2, HTSUS, states that subject to the

operation of Note 3 to Section XVI, a machine or appliance which

answers 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 record here

supports a conclusion that by function and design the TS is

described both by heading 8421 and by heading 8439. The issue,

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then, is the interpretation of Note 3 to Section XVI. In our

opinion, the TS is not a composite machine as it does not perform

two or more complementary or alternative functions, as the note

requires. Both components of the TS effectively separate solid

or semi-solid particles from liquids in pulp slurries. These are

not complementary functions - they are the same function

performed in sequence. By contrast, relevant ENs, in the third

paragraph on p. 1133, give as an example of composite machines an

industrial furnace (heading 84.17 or 85.14) combined with lifting

or handling machinery (84.28). These machines perform different

functions but are classifiable in headings 84.17 or 85.14 because

both contribute to the function performed by the furnace. For

these reasons, we conclude that the TS is not a composite machine

under Section XVI, Note 3, which renders the remainder of Chapter

84, Note 2 operative. See HQ 958936, dated October 17, 1996, on

substantially similar issues. For the stated reasons, the TS is

a good of heading 8421.

GRI 6 permits us to compare subheadings within the same

heading, provided that only subheadings at the same level are

comparable. Under Rule 6, the relative, section, chapter and

subchapter notes apply, unless the context otherwise requires.

Applying GRI 3(a) at the subheading level, the TS is prima facie

classifiable both in subheading 8421.19.00 and in subheading

8421.29.00, each of which describes part only of the good. These

subheadings, therefore, are deemed to be equally specific. Under

GRI 3(b), we agree with counsel\'s contention, for the reasons he

gives, that the reverse cleaner component of the TS imparts the

essential character to the whole. The TS is therefore to be

classified as if consisting only of the reverse cleaner which is

filtering or purifying apparatus.

HOLDING:

Under the authority of GRI 1, applied at the subheading

level by GRI 6, the Tube Separator HD Cleaner (TS) is provided

for in heading 8421. It is classifiable in subheading

8421.29.00, HTSUS. Since the rate of duty under this provision

is the same as the liquidated rate, 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

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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

Tariff Classification

Appeals Division