CLA-2 RR:CTF:TCM 966890 KBR
Port Director
Bureau of Customs and Border Protection
6747 Engle Road Middleburg Heights , OH 44130
RE: Protest 4101-03-100355; Gas Springs
Dear Port Director:
This is our decision on protest 4101-03-100355 filed by counsel on behalf of Barnes Group, Inc., DBA Hyson Products (“Hyson”), against your action regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of gas springs.
FACTS:
The entry under protest was made on October 10, 2002. The entry was liquidated on August 22, 2003, and this protest was timely filed on November 13, 2003. The articles at issue are pneumatic devices described in the entry materials as “gas springs”. Additional material was submitted dated December 4, 2003, January 21, 2004, August 20, 2004, and April 10, 2006. Consideration was also given to information discussed in multiple telephone calls and a teleconference with the protestant on April 11, 2006.
In their submission dated December 4, 2003, protestant describes the gas springs as:
various sizes and shapes of metal cylinders in which a metal piston moves in and out (up and down) in a linear fashion in reaction to pressure from an external source (pushing the piston into the cylinder) and from nitrogen gas compressed in the sealed cylinder (pushing the piston out). These products, called “nitrogen cylinders” or “gas springs,” are used for a wide range of mechanical applications requiring push or pull, lift strut, counter balance and other linear movement. The applications for which gas springs can be and are used include machine tools, hoists and davits, farm machinery, construction equipment, robotics, and other industrial machines.
Hyson also states in its submission dated August 20, 2004, that other applications for the gas springs include:
robot arms, compressors, drive-belts, dump truck lifts, metal stamping machines, chain saws, drilling machines, push-and-pull vehicles, railcars, to name only a few. Their design and adaptability give gas springs a unique capacity to meet specific needs for certain machine tools, hoists and davits, farm machinery, construction equipment, robotics and automated production systems as stock lifters, metal formers, or for other manufacturing functions. Some customers also use Hyson gas springs for unique applications, like seismic detection.
In their letter dated January 21, 2004, protestant also states that “Hyson’s gas springs have multiple actual and possible uses, and the specific use of any particular gas spring may not be known at the time of entry.” The subject gas springs are not ‘made-to-order’ and Hyson “generally does not know at the time of importation and entry who the end users/customers of its gas springs will be or what the end uses or applications will be for those products.” See protestant’s submission dated August 20, 2004.
In the “Protest Attachment”, the protestant states:
As can also be seen in the attached literature, the gas springs have a number of uses. For instance, they can be used on machine tools, hoists and davits, farm machinery, construction equipment, robotics, etc. Some need no adaptation after importation and can be used as is. Others require post-importation fittings or other forms of connectivity. As such, we believe that at time of importation, they are not dedicated for any specific use and, as such, should not be classified as a part of or accessory to any one particular article or application.
Various types and sizes of gas springs are imported. The gas springs range from “mini” that can fit in your palm, to gas springs capable of exerting 22,000 pounds of pressure. Some of the gas springs are self contained and act individually. Other gas springs may be connected to a gas supply to increase and decrease their force, and may be hooked up to work in conjunction with other gas springs. Hyson states that:
For a number of the specific models, the operator can monitor the pressure of the compressed nitrogen gas in the gas spring and can control – through various means or peripheral equipment, electronically or manually – both the amount of force generated by the gas spring when it extends and/or retracts and the length of its stroke…. Most gas springs are also equipped to receive nitrogen gas from an external source during an operation or when deemed necessary by the operator. Gas springs can be controlled further by adjusting and “locking” the position of the piston before and during operation.
During the teleconference on April 11, 2006, protestant, for the first time alleged that some of the gas springs of the T2 and T3 models may have an exclusive use in metal stamping machines. Protestant also alleged for the first time that approximately half of the mini-gas springs may be used in stamping machines to eject the pressed part.
The articles were entered under subheading 8466.94.8585, HTSUSA, as parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing heads and other special attachments for machine tools; tool holders for any type of tool for working in the hand; other; for machines of heading 8462 or 8463; other; other; other; other. Protestant believes the gas springs should be classified in subheading 8412.31.0080, HTSUSA, as other engines and motors, and parts thereof; pneumatic power engines and motors; linear acting (cylinders); other. Alternately, protestant suggests classification in heading 8428, as “[o]ther lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics)”; or heading 8479, as “[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof”.
ISSUE:
What is the classification under the HTSUSA of the gas springs?
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 matters protested are protestable (see 19 U.S.C. §1514 (a)(2) and (5)).
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.
The HTSUS provisions under consideration are as follows:
7320 Springs and leaves for springs, of iron or steel:
8207 Interchangeable tools for handtools, whether or not power-operated, or for machine-tools (for example, for pressing, stamping, punching tapping, threading, drilling, boring, broaching, milling, turning or screwdriving), including dies for drawing or extruding metal, and rock drilling or earth boring tools; base metal parts thereof:
8207.30 Tools for pressing, stamping or punching, and parts thereof:
8207.30.60 Not suitable for cutting metal, and parts thereof:
8207.30.6090 Other
8412 Other engines and motors, and parts thereof:
Pneumatic power engines and motors:
8412.31.00 Linear acting (cylinders):
8412.31.0080 Other
8428 Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics):
8428.90.00 Other machinery:
Other:
8428.90.0090 Other
8466 Parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing heads and other special attachments for machine tools; tool holders for any type of tool for working in the hand:
Other:
8466.94 For machines of heading 8462 or 8463:
Other:
Other:
8466.94.85 Other:
8466.94.8585 Other
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances:
8479.89 Other:
Other:
8479.89.98 Other:
8479.89.9897 Other
8485 Machinery parts, not containing electrical connectors, insulators, coils, contacts or other electrical features, and not specified or included elsewhere in this chapter:
8485.90.00 Other:
8485.90.0080 Other
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing 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 Fed. Reg. 35127, 35128 (August 23, 1989).
Heading 7320, HTSUSA, includes springs and leaves for springs, of iron or steel. The ENs for this heading state “[s]prings are made form sheet metal, wire or rod of an elastic quality, is such a way that they have the property of returning to their original form even after considerable displacement.” These types of springs are the traditional “coil” springs, not a gas spring where the resistance is supplied by compressed gas. Therefore, heading 7320 is not appropriate for classifying the gas springs.
Additional U.S. Rule of Interpretation 1(a), HTSUS, reads:
In the absence of special language or context which otherwise requires –
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;
The protestant is importing various sizes and types of gas springs. The gas springs are not made-to-order or dedicated to a particular use or user upon their importation. The gas springs have a very wide array of possible uses after importation and the protestant does not know to what use the gas springs will be put. Because we don’t know how the gas springs will be used, any classification heading based on principal use of an article is inappropriate.
Protestant alleged for the first time in the teleconference of April 11, 2006, that some of the gas springs of the T2B and T3 models may have an exclusive use in metal stamping machines. Protestant also alleged for the first time in the teleconference that approximately half of the mini-gas springs may be used in stamping machines to eject the pressed part. However, protestant consistently in every written submission and prior telephone conversation claimed that the gas springs “have multiple actual and possible uses, and the specific use of any particular gas spring may not be known at the time of entry.” Specifically for the larger gas springs protestant stated in their August 20, 2004 submission:
Hyson has identified some of its largest gas springs – e.g., it T2 Standard, T2L and T2ISO Series models – specifically for automotive producers…. Again, however, even for these large gas springs, Hyson does not know at the time it imports a shipment who the customers will be or the end uses to which they will apply the gas springs.
Further, in the same submission protestant states that, “[e]ven automotive industry customers may use gas springs for many different applications, only one of which would be in connection with metal forming.”
Therefore, we are not swayed by the unsubstantiated assertions during the teleconference that contradict the multiple written submissions and oral assertions previously provided. Further, it cannot be determined from the entry documents and protestant has not provided any information concerning whether the particular entry included any of the particular models of gas springs which they now allege may have a particular use.
Heading 8207, HTSUSA, includes interchangeable tools for handtools, whether or not power-operated, or for machine-tools. Heading 8428 includes other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics). Heading 8466 includes parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing heads and other special attachments for machine tools; tool holders for any type of tool for working in the hand. Each of these three headings have a particular type of machine or tool required for an article to be classified therein. Therefore, because the evidence does not support a finding of principal use for the gas springs, classification under headings 8207, 8428 and 8466, is not possible.
The protestant believes that the springs should be classified in heading 8412, HTSUSA, as other engines and motors, and parts thereof: pneumatic power engines and motors. The ENs for heading 8412 describe pneumatic power engines and motors as:
These engines use an external source of compressed air (or other gases) and, in principle, resemble a steam piston engine or, in some cases, a steam turbine. In suitable cases they may have burners or other heating devices to increase the air pressure (and hence the expansion energy) and also to prevent the cylinders from frosting due to rapid drop in temperature.
These engines are mainly used in mines for hauling tractors and winches because of their safety as regards fire-damp explosion. They are also used in certain locomotives, on aircraft, in submarines, etc., as auxiliary starting motors for internal combustion engines, and for propelling torpedoes.
This group also includes:
* * * * *
(2) Pneumatic cylinders consisting, for example, of a brass or steel barrel and a piston operated by compressed air applied on one side (single-acting) or on both sides (double acting) of the piston, the energy of the gas under pressure being converted into a linear motion. These cylinders are used on machine-tools, construction machinery, steering mechanisms, etc.
If a tariff term is not adequately defined in the HTSUS or ENs, it may be construed in accordance with its common or commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
Motor is defined as: “A device that converts any form of energy into mechanical energy, especially an internal-combustion engine or an arrangement of coils and magnets that converts electric current into mechanical power.” www.Dictionary.com. “[A] device that changes electricity or fuel into movement and makes a machine work.” Cambridge Advanced Learner’s Dictionary.
Engine is defined as: “[A] machine for converting any of various forms of energy into mechanical force and motion.” Merriam-Webster Online Dictionary (www.m-w.com). “a. A machine that converts energy into mechanical force or motion. b. Such a machine distinguished from an electric, spring-driven, or hydraulic motor by its use of a fuel.” Dictionary.com. “Machine that can convert any of various forms of energy into mechanical power or motion.” www.britannica.com.
Some of the springs are self-contained and act individually. Other types of gas springs may be joined together to act in conjunction or have hoses attached to the spring which allows nitrogen to be added to or removed from the gas spring. The self-contained gas spring that is not connected to the hoses allowing nitrogen to be added or removed act passively, similarly to a cushion. As such they are not converting energy into mechanical power. The gas springs provide controlled motion and speed in response to force applied to them, but they are not converting energy from an external source. Hence, the gas springs do not meet the definition of an engine or motor described above. See www.guden.com/gas_springs_1.1.asp
The second type of controllable gas springs are described as being hooked up to hoses which allow gas to be added to or released from the gas spring. The supplied brochures describe examples of the operation of the controllable gas springs as being used in metal stamping presses. The controllable gas springs are compressed by the press machine and locked into position. After the press machine releases the pressed article, the gas spring is then unlocked to eject the now shaped article from the press. The gas spring is compressed by the press and then merely releases from the compressed position. This is further shown by the protestant’s filing dated August 20, 2004, where they state on page 5:
Hyson gas springs are often employed to function as a motor within a metal stamping press whereby large gas springs are positioned to hold metal in place while it is stretched by a metal forming machine. Flywheel energy is used to work the metal and compress the gas springs. On the upward stroke, the gas springs drive the crankshaft assembly upwards and return energy to the flywheel. An electrical motor connected to the press only adds the differential energy lost from the metal forming.
This type of action is still passive, similar to a metal spring or an air cushion. The gas spring is not providing its own force, but simply returning the compression force provided by the flywheel. This is not acting as an engine or motor.
The material submitted by protestant specifically compares the gas spring to simple springs and air cushions. See Stamping Quarterly, Protestant’s Exhibit A. As defined above, this is also not an engine or motor. The gas springs may have nitrogen added or removed from the gas spring. This is done to equal out the gas springs to maintain uniform positioning. The addition or bleeding of the nitrogen is not done to power a motion by the gas spring. This is an adjustment to the spring, not using the spring as an engine or motor. Therefore, the controllable gas springs are also not a pneumatic engine or motor of heading 8412.
In the alternative, the protestant claims classification under heading 8479 which includes machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof. The ENs for this heading explain that “individual functions” include:
(A) Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.
* * * * *
(B) Mechanical devices which cannot perform their function unless they are mounted on another machine or appliance, or are incorporated in a more complex entity, provided that this function:
is distinct from that which is performed by the machine or appliance whereon they are to be mounted, or by the entity wherein they are to be incorporated, and
does not play an integral and inseparable part in the operation of such machine, appliance or entity.
The instant gas springs function when incorporated into a more complex entity. Therefore, the gas springs do not meet the description in EN 84.79(A). Therefore, the gas springs would have to meet the EN description in 84.79(B). The gas springs cannot perform their function distinctly from whatever machine they are attached to. However, the function the gas spring performs will play an integral part of the machine’s operation. If the gas spring is not operated, the machine will not be able to function. Because the gas springs play an integral and inseparable part of the operation of the machine they are incorporated into, they do not satisfy the EN description of (B)(ii), and classification in heading 8479 is not appropriate.
Virtually all of the uses of the gas springs will be as part of some type of machinery, although the type of machinery is unknown. The gas springs are not parts classifiable in their own heading, therefore Section XVI, Note 2(a) does not apply. As discussed above, the gas springs are not parts suitable for use solely or principally with a particular kind of machine or machines of the same heading. Therefore, Section XVI, Note 2(b) does not apply. Section XVI, Note 2(c) states, “[a]ll other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8485 or 8548.” As no parts heading describes the gas springs, by application of Note 2(c), we find that the gas springs are classifiable in heading 8485, specifically in subheading 8485.90.0080, HTSUSA, as “[m]achinery parts, not containing electrical connectors, insulators, coils, contacts or other electrical features, and not specified or included elsewhere in this chapter: [o]ther: [o]ther.”
HOLDING:
In accordance with the above discussion, the gas springs are classified in heading 8485. They are provided for in subheading 8485.90.0080, HTSUSA, as “[m]achinery parts, not containing electrical connectors, insulators, coils, contacts or other electrical features, and not specified or included elsewhere in this chapter: [o]ther: [o]ther.” The 2002 column one, general rate of duty rate is 3.9% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP 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 CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division