HQ 957854: Protest 3201-95-100007; Machinery for Sugar Manufacture; Filtration or Purifying Machinery and Apparatus; Ceramic Membrane Filters; Skids; Heading 8438; EN 84.38; Section XVI, Legal Note 2

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

HQ 957854

August 11, 1995

CLA-2 R:C:M 957854 RFA

CATEGORY: Classification

TARIFF NO.: 8421.29.00, 8421.99.00

District Director
U.S. Customs Service
335 Merchant Street
P.O. Box 1641
Honolulu, Hawaii 96806

RE: Protest 3201-95-100007; Machinery for Sugar Manufacture;
Filtration or Purifying Machinery and Apparatus; Ceramic
Membrane Filters; Skids; Heading 8438; EN 84.38; Section
XVI, Legal Note 2

Dear District Director:

The following is our decision regarding Protest 3201-95-100007, which concerns the classification of certain components
of machinery for sugar manufacturing under the Harmonized Tariff
Schedule of the United States (HTSUS).

FACTS:

The protest involves components for the Applexion system, a
sugar manufacturing system, which combines ultra-filtration with
ion-exchange to remove impurities and improve the sugar itself.
The Applexion system sends clarified sugar cane "juice" through
ceramic membrane filters to remove suspended solids, and then
softens the cane juice through an ion-exchange system. The ion
exchange system apparatus was not part of any of the three
entries which are the subject of this protest.

The ultra-filtration apparatus consists of skids and
"Kerasep" modules K99. The first entry covered 6 ultrafiltration
skids without the Kerasep modules. The skids are made of
stainless steel and include the horizontal cylinder and the U-shaped "header-like" caps in addition to the bottom support
portion for the Kerasep modules.

The second and third entries covered modules/membranes,
labeled as "Kerasep" tubular modules K99, 19 channels-300 KD.
The tubular modules are made of metal and contain the ceramic
membranes. Each membrane has 19 flow channels, arranged in a
circular, concentric configuration through the length of the
tubes. The ceramic tube provides a base for a coating of
zirconium oxide which is referred to as the "membrane" through
which the impurities are filtered out of the sugar cane juice.
Each module houses 99 membranes. The modules also contain
gaskets, thermometers, valves, and manometers. After
importation, the U-shaped "header-like" caps are unbolted from
the skid. The modules were attached to the horizontal cylinder
on the skids and the U-shaped caps were then re-bolted on top of
the modules. The skids were then arranged in a "three-stage feed
and bleed continuous system".

The merchandise was entered under subheading 8438.30.00,
HTSUS, as machinery not specified or included elsewhere for sugar
manufacture. The entries were liquidated on January 6, 1995,
under subheading 8421.22.00, HTSUS, as filtering or purifying
machinery and apparatus, for liquids (beverages). The protest
was timely filed on April 4, 1995.

Classification of the merchandise under subheading
8421.29.00, HTSUS, as other filtering or purifying machinery and
apparatus, or under subheading 8421.99.00, HTSUS, as parts of
filtering or purifying machinery and apparatus, are also under
consideration.

The subheadings under consideration are as follows:

8421: Centrifuges, including centrifugal dryers;
filtering or purifying machinery and apparatus,
for liquids or gases; parts thereof:

8421.22.00: Filtering or purifying machinery and
apparatus for liquids: [f]or filtering or
purifying beverages other than water. . . .

Goods classifiable under this provision have a general,
column one rate of duty of 3.1 percent ad valorem.

8421.29.00: Filtering or purifying machinery and
apparatus for liquids: [o]ther
. . . .

Goods classifiable under this provision have a general,
column one rate of duty of 3.1 percent ad valorem.

8421.99.00: Parts: [o]ther. . . .

Goods classifiable under this provision have a general,
column one rate of duty of 3.1 percent ad valorem.

8438.30.00 Machinery, not specified or included
elsewhere in this chapter, for the industrial
preparation or manufacture of food or drink,
other than machinery for the extraction or
preparation of animal or fixed vegetable fats
or oils. . . : [m]achinery for sugar
manufacture . . . . .

Goods classifiable under this provision have a general,
column one free rate of duty.

ISSUE:

Whether the components for the Applexion System are
classifiable as filtering or purifying machinery and apparatus
for liquids, or as machinery for sugar manufacture under the
HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.

The Kerasep modules are made of metal and contain membranes
made of ceramic. Legal Note 1(b) to chapter 84, HTSUS, states
that: "[t]his chapter does not cover: . . . [a]ppliances or
machinery (for example, pumps) or parts thereof, of ceramic
material (Chapter 69)". The Harmonized Commodity Description
and Coding System Explanatory Notes (EN) constitute the official
interpretation of the HTSUS. While not legally binding, the ENs
provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of
these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23,
1989). General EN to chapter 84, HTSUS, page 1137, states that:

Since machinery or appliances (for example, pumps)
of ceramic material and ceramic parts of machinery or
appliances of any material (Chapter 69), laboratory
glassware (heading 70.17) and machinery and appliances
and parts thereof, of glass (heading 70.19 or 70.20)
are excluded from this Chapter, it follows that even if
a machine or mechanical appliance is covered, because
of its description or nature, by a heading of this
Chapter it is not to be classified therein if it has
the character of an article of ceramic materials or of
glass.

This applies, for example, to articles of ceramic
material or of glass, incorporating components of minor
importance of other materials, such as stoppers,
joints, taps, etc., clamping or tightening bands or
collars or other fixing or supporting devices (stands,
tripods, etc.).

On the other hand, the following are, as a rule,
to be taken to have lost the character of ceramic
articles, laboratory glassware, or machinery or
appliances and parts thereof, of ceramic material or of
glass:

(i) Combinations of ceramic or glass components with a high
proportion of components of other materials (e.g., of
metal); also articles consisting of a high proportion
of ceramic or glass components incorporated or
permanently mounted in frames, cases or the like, of
other materials.

(ii) Combinations of static components of ceramic
material or glass with mechanical components such
as motors, pumps, etc., of other materials (e.g.,
of metal).

The ceramic membranes are incorporated into the metal
Kerasep modules along with gaskets, thermometers, valves, and
manometers. We find that the ceramic membranes have lost the
character of ceramic articles because they are incorporated with
a high proportion of other materials (e.g., metal). Therefore,
classification of the modules as ceramic articles under chapter
69, HTSUS, is precluded.

The protestant states that the subject components are
clarifiable under heading 8438, HTSUS, which provides for
machinery for the manufacture of sugar. EN 84.38, pages 1222-1224, states that:

This heading covers machinery, not specified or
included elsewhere in this Chapter, for the industrial
preparation or manufacture of food or drink (whether
for immediate consumption or preserving, and whether
for human or animal consumption), but not including
machinery for the extraction or preparation of animal
or fixed vegetable fats or oils (heading 84.79).

It should, however, be noted that in practice the
heading excludes many machines used for these purposes,
e.g.:
* * * * * *
(d) Centrifuges and filters (heading 84.21).
* * * * * *
(V) MACHINERY FOR SUGAR MANUFACTURE

The type of machinery used for extracting the
sugar juices depends on whether sugar cane or sugar
beet is employed. The machines used for extracting the
sugar from the juice are, however, much the same in
each case.

(A) Machines for extracting the juice from sugar cane,
e.g.:

(1) Cutters or defibrators, consisting of a series of
double-edged knives which revolve at high speed
and thus reduce the cane to long fibres.

(2) Shredders in which the cane is passed between
toothed rollers revolving at different speeds and
is thereby torn to shreds.

(3) Crushers, which consist essentially of adjustable,
corrugated metal rollers. Some machines combine
the operations of shredding and crushing.

(4) Roller mills, which usually consist of trains of
grooved rollers for extracting the juice from the
crushed cane. They normally incorporate feeding
and conveyor mechanisms, equipment for spraying
water on to the cane during rolling, and
maceration baths.
* * * * * *
(C) Machines for extracting the sugar from the juice,
or for refining the sugar, e.g.:

(1) Sulphiting vessels, provided they incorporate
mechanical agitators, but not including those with
thermal equipment (heading 84.19).

(2) Crystallising apparatus fitted with slow stirring
devices. The syrupy mass ("masse cuite") from the
concentration plant is here cooled by the
surrounding air, and the crystallisation begun in
that plant is completed.

(3) Machines for sawing or breaking sugar into lumps,
etc.

The heading excludes:

(a) Defecation vessels, juice concentration plant, vacuum
boiling or crystallising pans and other plant of
heading 84.19.
(b) Centrifugal separators and filter presses (heading
84.21).

According to EN 84.38, if the subject merchandise is found
to be classifiable in another heading, it cannot be classified
under heading 8438, HTSUS. The protestant believes that the
Applexion system is classifiable under heading 8438, HTSUS,
because it combines ultra-filtration with ion-exchange. However,
the evidence indicates that the ion-exchange apparatus was not
entered with any of the entries subject to the protest. Instead,
the ion-exchange was separately fabricated in the continental
United States and shipped directly to Hawaii. Under a long-standing principle, Customs classifies merchandise in its
condition as entered. Therefore, we must classify each entry
separately.

As stated above, the Kerasep modules and the skids are
component parts which are used in the manufacture of sugar.
Legal Note 2 to Section XVI, HTSUS, provides as follows:

Parts of machines (not being parts of the articles of
heading 8484, 8544, 8545, 8546 or 8547) are to be
classified according to the following rules:

(a) Parts which are goods included in any of the
headings of Chapter 84 and 85 (other than headings
8485 and 8548) are in all cases to be classified
in their respective headings;

(b) Other parts, if suitable for use solely or
principally with a particular kind of machine, or
with a number of machines of the same heading
(including a machine of heading 8479 or 8543) are
to be classified with the machines of that kind.
However, parts which are equally suitable for use
principally with the goods of headings 8517 and
8525 to 8528 are to be classified in heading 8517;

The second and third entries covered the Kerasep modules
which filter the sugar cane "juice" to remove suspended solids.
According to the literature provided, this process results in an
"ultra-filtration" of the sugar cane "juice". This process is
provided for under heading 8421, HTSUS, as filtering or purifying
machinery and apparatus for liquids. The protestant states that
classification under subheading 8421.22.00, HTSUS, does not apply
because the equipment is not used for the processing of
beverages. The term "juice" as used in the sugar industry refers
to a sugar solution, because at this stage the sugar is in liquid
form. Because the sugar cane "juice" is not a beverage, we agree
that classification under subheading 8421.22.00, HTSUS, is
precluded. Under the authority of Legal Note 2(a) to Section
XVI, HTSUS, we find that the Kerasep modules are properly
classified under subheading 8421.29.00, HTSUS, as other filtering
or purifying machines and apparatus for liquids.

The first entry covered the skids which are made of
stainless steel and include the horizontal cylinder and the the
U-shaped "header-like" caps in addition to the bottom support
portion for the Kerasep modules (hereinafter referred to as "the
skid assembly"). According to the information provided, the
"header-like" caps were unbolted from the skid. The modules were
attached to the horizontal cylinder on the skids and the U-shaped
caps were then re-bolted on top of the modules. The skid
assembly with the Kerasep modules attached, were then arranged in
a "three-stage feed and bleed continuous system". Based upon
these facts, we find that the skid assembly acts as the support
mechanism for the filtering or purifying apparatus and does not
perform any filtering or purifying. Classification of the skid
assembly under the principles of Legal Note 2(a) to Section XVI,
HTSUS, fails because there is no heading which describes this
merchandise. However, the skid assembly is clearly a major
component part in the filtration process. Therefore, we find
that the skid assembly is suitable for use solely or principally
with the Kerasep modules which are attached to the skid
assembly's horizontal cylinder and "header-like caps" after
importation. Under the authority of Legal Note 2(b) to Section
XVI, HTSUS, we find that the skid assembly is classifiable under
subheading 8421.99.00, HTSUS, as parts of machinery and apparatus
for filtering or purifying.

HOLDING:

The Kerasep modules are classifiable under subheading
8421.29.00, HTSUS, as other filtering or purifying machines and
apparatus for liquids. The skid assembly is classifiable under
subheading 8421.99.00, HTSUS, as parts of machinery and apparatus
for filtering or purifying.

Because reclassification of the merchandise as indicated
above will result in the same as the liquidated rate, you should
DENY the protest in full. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision, together with the
Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of 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 the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

HQ 957854: Protest 3201-95-100007; Machinery for Sugar Manufacture; Filtration or Purifying Machinery and Apparatus; Ceramic Membrane Filters; Skids; Heading 8438; EN 84.38; Section XVI, Legal Note 2

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