CLA-2:RR:CR:GC 962057 AML
TARIFF NOS.: 8414.80.15; 8414.90.40
Port Director of Customs
Los Angeles/Long Beach Seaport Area
300 South Ferry Street
Terminal Island, California 90731
RE: Protest 2704-98-100793; Double Diaphragm Linear (“DDL”) Pumps
Dear Port Director:
The following is our decision regarding protest 2704-98-100793, concerning your classification of GAST linear air pumps pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Photocopies of the pumps (also referred to as “air compressors”) were provided for our examination. In preparing this decision consideration was given to arguments presented by counsel in a meeting on February 4, 1999, and a supplemental submission dated February 24, 1999.
FACTS:
The articles are double diaphragm linear motion air pumps or compressors and parts. The protestant notes that the articles “are positive displacement diaphragm compressors that use linear (not centrifugal) motion to compress air.” Literature provided by the protestant describes the mechanism as follows:
Working Principle of the DDL Series Linear Pumps
When the alternating current is applied to the electromagnet, the actuating rod moves . . . by the magnetic attraction and repellent forces exerted between the electromagnet and the permanent magnets attached to the rod. The rod oscillates at the same frequency as that of the power supply and changes the volume of the space between the casing and the diaphragm. Air intake, compression and exhaust are performed with silent “umbrella” valves.
The maximum pressure of the “DDL Series Linear Pumps” is stated in the “Table of Contents/Performance Overview” and ranges from 2 to 10 pounds per square inch (psi) at 50 hertz (Hz) and 2 to 10.5 psi at 60 Hz. The maximum vacuum created, by the articles which have vacuum pump capabilities, ranges from 6 to 12.1 hectograms (HG) at 60 Hz. The imported model numbers are included in this table. According to the literature attached to the protests, the design specifications of the enumerated models subject to this protest, all of which incorporate the working principle described above, are as follows:
C-5B - is described generally as a small capacity oil-less linear pump which can produce 3.5 pounds per square inch (psi) maximum pressure and 13 LPM (liters per minute) at 60 hertz (Hz).
SPP-6EBS - is described generally as a small capacity oil-less linear pump which can produce 3.8 psi maximum pressure and 11 LPM open flow at 60 Hz, and 6.5" hectograms (HG) maximum vacuum, also at 60 Hz.
SPP-15EBS - is described generally as a small capacity oil-less linear pump which can produce 4.0 psi maximum pressure and 31 LPM open flow at 60 Hz, and 8" HG maximum vacuum, also at 60 Hz.
SPP-30 GJL - is described generally as a medium capacity oil-less linear pump which can produce 4.5 psi maximum pressure and 55 LPM open flow at 60 Hz.
SPP-60 GJL (also includes SPP-60 GJL/GBS) - is described generally as a medium capacity oil-less linear pump which can produce 6.4 psi maximum pressure and 77 LPM open flow at 60 Hz.
The articles were entered between October, 1997 and February, 1998. The entries were liquidated on March 13 and April 3, 1998, with classification in subheading 8414.80.90 and 8414.90.90, HTSUS, as air pumps and as parts of air pumps, respectively. This protest was filed on June 10, 1998.
Citing the heading and description provided in the HTSUS, the ordinary meaning rule of construction and General Rule of Interpretation (GRI) 1, the protestant contends that the articles are properly classifiable in subheading 8414.80.15, HTSUS, as other air compressors; with the parts of the articles being classifiable in subheading 8414.90.40, HTSUS, as other parts of compressors. The protestant further posits that the standard for classification of similar articles employed by Customs, i.e., classification of articles based upon the amount of pressure per square inch generated by the articles, is erroneous. In support of its arguments, the protestant submits a declaration by the Technical Support Manager of GAST Manufacturing Corporation, which professes his expertise in the area of air compressors and his criticism of the standards employed by Customs in classifying such products.
ISSUES:
Whether the double diaphragm, linear motion air pumps or compressors are classifiable under subheading 8414.10.00, HTSUS, as vacuum pumps; or subheading 8414.80.15, HTSUS, as other air compressors; or subheading 8414.80.90, HTSUS, as other air pumps?
Whether the parts for the double diaphragm, linear motion air pumps or compressors are classifiable under subheading 8414.90.40, HTSUS, as other parts of compressors, or subheading 8414.90.90, HTSUS, as parts of air or vacuum pumps?
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
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. GRI 6 provides, in pertinent part:
the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.
The HTSUS subheadings under consideration are as follows:
8414 Air or vacuum pumps, air or other gas
compressors and fans; ventilating or recycling
hoods incorporating a fan, whether or not
fitted with filters; parts thereof:
8414.10.00 Vacuum pumps:
8414.80 Other, except parts:
Air compressors:
8414.80.05 Turbochargers and superchargers:
8414.80.15 Other:
8414.80.20 Other compressors:
8414.80.90 Other.
8414.90 Parts:
Of compressors:
8414.90.40 Other:
8414.90.90 Other.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, 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. Customs believes the ENs should always be consulted. See T.D. 89 80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
There is no dispute that the articles are classifiable in heading 8414. The issue is which subheading best describes the DDL linear air pumps or compressors (and combination air pumps or compressors and vacuum pumps).
Subheadings 8414.20, 8414.30, 8414.40 and 8414.60, HTSUS, may be eliminated for all models. Additionally, subheading 8414.10, HTSUS, may be eliminated for model #s C-5B, SPP-30 GJL, and SPP-60 GJL (including SPP-60 GJL/EBS), although the subheading does describe one of the functions of models SPP-6EBS and SPP-15EBS, which also have vacuum pump capabilities.
The articles covered by subheading 8414.80, HTSUS, after elimination of the articles covered by the preceding subheadings within heading 8414, are air pumps other than hand- or foot-operated, and compressors other than those used in refrigerating equipment or air compressors mounted on a wheeled chassis. The merchandise under consideration (excluding for the time being the models with vacuum pump capabilities) may possibly be described as air compressors (subheading 8414.80.05, HTSUS) or air pumps (8414.80.90, HTSUS).
EN 84.14 distinguishes between air pumps and compressors as follows:
Air . . . pumps serve many purposes: . . . for pumping air at pressure (e.g., for inflating pneumatic tyres).
* * *
Compressors are widely used: for compressing gases into gas cylinders; in chemical processes; for refrigerators, etc. and for compressing air or other gases in reservoirs to be used to force feed machines or apparatus such as compressed air engines, pneumatic picks, winches, brakes, pneumatic conveyor tubes, submarine ballast tanks, etc.
The common meanings of these terms are illustrated by the definition of the term “pump” in The Concise Columbia Electronic Encyclopedia (3rd Ed., 1994). A “pump” is defined as “[a] device to lift, transfer, or increase the pressure of a fluid (liquid or gas) or to create a [vacuum].” In the same definition, compressors are stated to be “ . . . used to force air or other gasses into a closed container.” Thus, both an air pump and an air compressor may be used to increase the pressure of air, but the latter is used to force the air into a closed container. This distinction is consistent with examples in EN 84.14 (above). That is, in the example, compressors are used for compressing gases into gas cylinders or into reservoirs to be used for pneumatic picks, brakes, and the like, while pumps are used for inflating tires. See also, the article on “Compressor[s]” in the McGraw-Hill Encyclopedia of Science and Technology, Vol. 4, p. 234 (7th Ed., 1992).
The typical applications of the linear air pumps are listed in the promotional literature as: Blood Cuff Monitor, Waste Water Treatment, Environmental Monitoring and Air Sampling, Oxygen Supply for Medical Instruments, Liquid Agitation and Mixing, Hospital Air Mattress, Medical Nebulizer, Air Supply for Leak Test Equipment, Solder Removal, Automotive Emission Test Equipment, and Scientific and Medical Analysis Equipment. Most of these applications are similar to the above examples (in the EN) for an air pump; not for an air compressor.
Further, we note that in the invoices for the protested entries, the merchandise is described as air pumps, and that although some of the promotional material describes the merchandise as linear compressors and vacuum pumps, the specification sheets for the articles describes them as “Oilless linear pump[s]” (emphasis added).
We conclude that the articles are air pumps or combination air pumps and vacuum pumps. The air pumps without vacuum pump capabilities are classified in subheading 8414.80.90, HTSUS, as other air pumps.
Classification of the combination air pumps and vacuum pumps is governed by Note 3, Section XVI, HTSUS, applied at the subheading level pursuant to GRIs 6 and 1. Under that note, “[u]nless the context otherwise requires, . . . machines adapted for performing two or more complimentary or alternative functions are to be classified as if . . . being that machine that performs the principal function.”
We conclude that the air pump function and the vacuum pump functions are complimentary and alternative functions. There is no evidence as to which function is the principal function. General EN (VI) to Section XVI, HTSUS, states that “[w]here it is not possible to determine the principal function, and where, as provided in Note 3 to the Section, the context does not otherwise require, it is necessary to apply [GRI] 3(c) . . .”
GRI 3(c) provides that “[w]hen goods cannot be classified by reference to [GRI] 3(a) [by the most specific description] or 3(b) [by the material or component providing the essential character], they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.” The subheading which occurs last in numerical order among those which equally merit consideration for the combination air pump and vacuum pump is subheading 8414.80.90, HTSUS. Accordingly, the combination pumps are classified in that subheading, as other air pumps.
This is consistent with New York Ruling Letter (NY) A89259, dated December 6, 1996, in which an electrically operated air pump for an aquarium starter set was classified in subheading 8414.80.90, HTSUS. This is not inconsistent with Headquarters Ruling Letter (HQ) 952670, dated December 21, 1992 (see also HQ 953199, dated April 2, 1993 and HQ 955739, dated April 22, 1994), in which turbochargers for internal combustion diesel engines were classified in subheading 8414.80.10, HTSUS, as compressors, and not in subheading 8414.59.30, HTSUS, as other fans. HQ 952670 was based in part on the distinction between blowers and compressors derived from Van Nostrand’s Scientific Encyclopedia, 1963. We believe that the distinction in HQ 952670, based on the compression ratio of the machines, remains valid for the articles in that ruling (turbochargers for engines) and in regard to the competing tariff provisions in that ruling (fans, blowers and compressors). In this regard see, e.g., McGraw-Hill Encyclopedia of Science and Technology, Vol. 4, p. 234 (7th Ed., 1992), in which it is stated “[w]hen [compressors are] compared with centrifugal or axial-flow fans on the basis of discharge pressure, compressors are generally classed and high-pressure and fans as low pressure machines.”
Because the articles are classified in subheading 8414.80.90, HTSUS, as other air pumps, parts of the articles are classified in subheading 8414.90.90, HTSUS, as other parts.
HOLDING:
The articles are classified under subheading 8414.80.90, HTSUS, as other air pumps. The parts of those articles are classified under subheading 8414.90.90, HTSUS, as other parts.
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 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