CBP Ruling H108255

HQ H108255 April 11, 2012 OT:RR:CTF:VS H108255 CMR CATEGORY: Classification TARIFF NO.: 8411.82.80 Manager, Import Compliance General Electric Aircraft Engines One Neumann Way Cincinnati, OH 45215 RE: Reconsideration of Headquarters Ruling Letter 087981, dated December 21, 1990; Classification of gas generator to be coupled with a power turbine Dear Sir or Madam: On December 21, 1990, the U.S. Customs Service, the predecessor agency of U.S. Customs and Border Protection, issued Headquarters Ruling Letter (HQ) 087981 to your company classifying the gas generator of a General Electric LM 5000 gas turbine engine as a part of a gas turbine in subheading 8411.99.90 of the Harmonized Tariff Schedule of the United States (HTSUS). In the course of reconsidering another ruling letter on similar merchandise, we have reviewed HQ 087981 and determined the classification of the gas generator at issue therein as a part was an error. Therefore, we are revoking HQ 087981 and reclassifying the subject gas generator in accordance with the analysis set forth below. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of HQ 967102 was published November 2, 2011, in the Customs Bulletin, Volume 45, Number 45. One comment was received and is discussed in the decision below. FACTS: The merchandise at issue in HQ 087981 was a gas generator for a General Electric LM 5000 gas turbine engine. The gas generator was described in the ruling as follows: . . . . The gas generator consists of a low pressure compressor and turbine, a high pressure compressor and turbine, an annular combustor and an accessory drive gearbox. After importation, the gas generator is coupled to a power turbine to form a complete LM 5000 gas turbine engine. The gas generator compresses air in a compressor and then heats the air in a combustor. In a complete LM 5000 turbine the gaseous emission is then passed from the gas generator through the power turbine. The power turbine then converts the aerodynamic energy into mechanical energy by turning a rotor which is coupled to a shaft. The accessory drive gearbox is used to control the lubrication, variable geometry controls and fuel system of the gas generator. General Electric LM 5000 turbines are simple cycle turbines and are designed for marine and industrial applications. Complete LM 5000 turbines may, for example, be connected to a compressor for use in an oil platform/gas pumper industry application, or may be connected to an electrical generator for use in the power generating industry. In HQ 087981, Customs determined that the gas generator at issue was classifiable as a "part" of a gas turbine based on a belief that the gas generator consisted only of the compressor and combustor components of a gas turbine and lacked the turbine component necessary for the unit to be considered a gas turbine. We believe this was due to confusion with regard to the role of the compressor turbine and a belief that a gas generator imported without the power turbine with which it will be coupled would not fall within the definition of a gas turbine. In response to the notice of the proposed modification of HQ 967102, one comment was received. The commenter proposed classification of the gas generators in subheading 8405.10.00, HTSUS, as producer gas generators. ISSUE: Is the gas generator of the LM 5000 gas turbine properly classified as a part of a gas turbine (other than a part of a turbojet or turbopropeller) in subheading 8411.99.90, HTSUS, or is it classified as an "other gas turbine" of subheading 8411.82.80, HTSUS? LAW AND ANALYSIS: Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by 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 taken in order]." In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The tariff provisions at issue are subheadings of heading 8411 and provide as follows: 8411 Turbojets, turbopropellers and other gas turbines, and parts thereof: Turbojets: 8411.11 Of a thrust not exceeding 25 kN: * * * 8411.12 Of a thrust exceeding 25 kN: * * * Turbopropellers: 8411.21 Of a power not exceeding 1,100 kW: * * * 8411.22 Of a power exceeding 1,100 kW: * * * Other gas turbines: 8411.81 Of a power not exceeding 5,000 kW: * * * 8411.82 Of a power exceeding 5,000 kW: * * * Parts: 8411.91 Of turbojets or turbopropellers: * * * 8411.99 Other: * * * Heading 8411, HTSUS, covers three types of engines: Turbojets, Turbopropellers, and Other Gas Turbines, and their parts. EN 84.11 parallels the heading listings for these three engine types and states in pertinent part as follows: This heading covers turbo-jets, turbo-propellers and other gas turbines. The turbines of this heading are, in general, internal combustion engines which do not usually require any external source of heat as does, for example, a steam turbine. (A) TURBO-JETS A turbo-jet consists of a compressor, a combustion system, a turbine and a nozzle, which is a convergent duct placed in the exhaust pipe. The hot pressurized gas exiting from the turbine is converted to a high velocity gas stream by the nozzle. The reaction of this gas stream acting on the engine provides the motive force which may be used to power aircraft. In its simplest form the compressor and turbine are accommodated on a single shaft. In more complex designs the compressor is made in two parts (a two spool compressor) in which the spool of each part is driven by its own turbine through concentric shafting. Another variation is to add a ducted fan usually at the inlet to the compressor and drive this either by a third turbine or connect it to the first compressor spool. The fan acts in the nature of a ducted propeller, most of its output bypassing the compressor and turbine and joining the exhaust jet to provide extra thrust. This version is sometimes called a "bypass fan jet." * * * (B) TURBO-PROPELLERS Such engines are similar to turbo-jets, but have a further turbine downstream of the compressor turbine, which is coupled to a conventional propeller such as is used on piston engined aircraft. This latter turbine is sometimes referred to as a "free turbine", meaning that it is not mechanically coupled to the compressor and compressor turbine shaft. Thus most of the hot pressurised gas leaving the compressor turbine is converted into shaft power by the free turbine instead of being expanded in a nozzle as is the case in turbo-jets. In some cases, the gases leaving the free turbine may be expanded in a nozzle to provide auxiliary jet power and assist the propeller. (C) OTHER GAS TURBINES This group includes industrial gas-turbine units which are either specifically designed for industrial use or adapt turbo-jets or turbo-propeller units for uses other than providing motive power for aircraft. There are two types of cycles: (1) The simple cycle, in which air is ingested and compressed by the compressor, heated in the combustion system and passed through the turbine, finally exhausting to the atmosphere. (2) The regenerative cycle, in which air is ingested, compressed and passed through the air pipes of a regenerator. The air is pre-heated by the turbine exhaust and is then passed to the combustion system where it is further heated by the addition of fuel. The air/gas mixture passes through the turbine and is exhausted through the hot gas side of the regenerator and finally to the atmosphere. There are two types of designs: (a) The single-shaft gas turbine unit, in which the compressor and turbine are built on a single shaft, the turbine providing power to rotate the compressor and to drive rotating machinery through a coupling. This type of drive is most effective for constant speed applications such as electrical power generation. (b) The two-shaft gas turbine unit, in which the compressor, combustion system and compressor turbine are accommodated in one unit generally called a gas generator, whilst a second turbine on a separate shaft receives the heated and pressurised gas from the exhaust of the gas generator. This second turbine known as the power turbine is coupled to a driven unit, such as a compressor or pump. Two-shaft gas turbines are normally applied where load demand variations require a range of power and rotational speed from the gas turbine These gas turbines are used for marine craft and locomotives, for electrical power generation, and for mechanical drives in the oil and gas, pipeline and petrochemical industries. This group also includes other gas turbines without a combustion chamber, comprising simply a stator and rotor and which use energy from gases provided by other machines or appliances (e.g., gas generators, diesel engines, free-piston generators) and compressed air or other compressed gas turbines. PARTS Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), parts of the engines and motors of this heading are also classified here (e.g., gas turbine rotors, combustion chambers and vents for jet engines, parts of turbo-jet engines (stator rings, with or without blades, rotor discs or wheels, with or without fins, blades and fins), fuel feed regulators, fuel nozzles). The alternative classification suggested by the commenter is subheading 8405.10.00, HTSUS, which provides for: 8405 Producer gas or water gas generators, with or without their purifiers; acetylene gas generators and similar water process gas generators, with or without their purifiers; parts thereof: 8405.10.00 00 Producer gas or water gas generators, with or without their purifiers; acetylene gas generators and similar water process gas generators, with or without their purifiers . . . * * * EN 84.05 provides in pertinent part as follows: This heading covers self-contained apparatus and plant for generating any kind of gas (e.g., producer gas, water gas and mixtures thereof, or acetylene) whatever the intended use of the gas produced (lighting, industrial heating, feeding gas engines, welding or cutting metals, chemical synthesis, etc.). * * * (A) PRODUCER GAS GENERATORS These usually consist of a closed cylinder, generally fitted with a refractory lining or a water-cooled double wall enclosing a grate (either of fixed, shaking or revolving type), with provision for passing a current of air (or of air and steam) by suction or blowing. A thick bed of fuel is burned on the grate and the flow of air and steam is regulated so that combustion is incomplete. The decomposition of the water and the incomplete combustion of the fuel yield carbon monoxide and hydrogen. The resultant mixture of carbon monoxide, hydrogen and nitrogen (producer gas) is drawn off at the top of the apparatus. In certain generators of the "reversed combustion" type, the air is blown from the top to the bottom and along the sides of the cylinder and the gas is collected at the bottom of the apparatus, below the grate. This allows for more complete combustion of tars, etc. * * * Both producer gas and water gas generators may be adapted for burning many kinds of solid fuel (e.g., coal, coke, charcoal, wood, vegetable or other waste). * * * Before addressing the arguments regarding classification of the gas generators in heading 8411, HTSUS, we will dispense with the commenter's suggestion of classification in heading 8405, HTSUS, as producer gas generators. The commenter suggests the gas generators at issue cannot be classified as gas turbines of heading 8411, HTSUS, because the EN for heading 84.11 states that "other gas turbines" includes "gas turbines without a combustion chamber comprising simply a stator and rotor and which use energy from gases provided by other machines or appliances (e.g., gas generators . . . )." Commenter's submission at page 5. The commenter infers that as the goods at issue are referred to as gas generators, they must be an other machine or appliance as noted in the EN. However, the commenter is assuming that all goods referred to as gas generators are the same, and, quite simply, they are not. The term "gas generator" may be used to describe a variety of appliances with different constructions and different fuel sources and outputs. For instance, "gas generator" is defined in the McGraw-Hill Dictionary of Scientific & Technical Terms, 6th Edition (2003) as follows: A device used to generate gases in the laboratory. (chemical engineering) A chemical plant for producing gas from coal, for example, water gas. (mechanical engineering) An apparatus that supplies a high-pressure gas flow to drive compressors, airscrews, and other machines. The scope of the term "gas generators" in the EN for heading 84.11 is not clear. We are not convinced that it refers to the goods at issue herein that consist of the elements of a gas turbine as discussed in detail below. With regard to heading 8405, HTSUS, "producer gas" is defined as: A gas composed of carbon monoxide, hydrogen, and nitrogen, obtained by passing air and steam through incandescent coke, used as an industrial fuel, in certain gas engines, and in the manufacture of ammonia. At 1544, Random House Unabridged Dictionary, 2nd Edition (1993). A combustible mixture of nitrogen, carbon monoxide, and hydrogen, generated by passing air with stream over burning coke or coal in a furnace and used as fuel. The American Heritage Dictionary of the English Language, 4th Edition (2000). Gas made in a producer, consisting chiefly of carbon monoxide, hydrogen, and nitrogen, and having an average hearing value of about 150 Btu. At 1810, Webster's Third New International Dictionary of the English Language Unabridged (1993). Based on the definitions of "producer gas" and the EN for heading 84.05, producer gas generators are designed to produce specific gases to be used as a fuel. The gas generators at issue are designed to blow hot air. The designs and purposes of producer gas generators and the gas generators at issue are clearly different and distinct. The gas generators at issue are not classifiable in heading 8405, HTSUS. See also, HQ 951195, dated June 15, 1992 and HQ 957651, dated March 20, 1995, in which we held that heading 8405, HTSIS, provides only for producer gas generators, water gas generators, acetylene gas generators, and similar water process gas generators. All of the engines of heading 8411, HTSUS, are gas turbines. In considering whether the gas generator at issue is classifiable as a gas turbine, or as a part of a gas turbine, we need to more fully understand what a gas turbine is and its function. While the EN provide guidance, further clarification may be found from lexicographic sources. Tariff terms are to be construed according to their common meaning in the absence of contrary legislative intent and so it is proper to consult lexicographic and scientific authorities, dictionaries and other reliable sources in ascertaining the common meaning of a tariff term. See Lyntec, Inc. v. United States, 976 F.2d 693, 697 (1992). "Gas turbine" is defined as follows: An air-breathing internal-combustion engine composed of an air compressor, a combustion chamber, and a turbine wheel, used esp. for propulsion. Webster's II New Riverside University Dictionary, at 521 (Houghton Mifflin Company, 1984). An internal-combustion engine consisting of an air compressor, combustion chamber, and turbine wheel that is turned by the expanding products of combustion. The four major types of gas turbine engines are the turboprop, turbojet, turbofan, and turboshaft. See more at turbojet. The American Heritage(r) Science Dictionary (Houghton Mifflin Company, 2002). A combustion turbine that converts the energy of hot compresses gases, produced by burning fuel in compressed air, in to mechanical power. "Glossary" at www.power-technology.com. (combustion turbine) A turbine that converts the energy of hot compressed gases (produced by burning fuel in compressed air) into mechanical power. Often fired by natural gas or fuel oil. Glossary of Bioenergy Terms, at http://bioenergy.ornl.gov/faqs/glossary.html. In addition, from "Introduction to Gas Turbines for Non-Engineers", by Lee S. Langston, University of Connecticut, and George Opdyke, Jr., Dykewood Enterprises (Published in the Global Gas Turbine News, Volume 37: 1997, No. 2), we find the following discussion quite informative: A greater understanding of the gas turbine and its operation can be gained by considering its three major components (. . .): the compressor, the combustor and the turbine. The features and characteristics will be touched on here only briefly. Compressors and Turbines: The compressor components are connected to the turbine by a shaft in order to allow the turbine to turn the compressor. A single shaft gas turbine (. . .) has only one shaft connecting the compressor and turbine components. A twin spool gas turbine (. . .) has two concentric shafts, a longer one connecting a low pressure compressor to a low pressure turbine (the low spool) which rotates inside a shorter, larger diameter shaft. The shorter, larger diameter shaft connects the high pressure turbine with the higher pressure compressor (the high spool) which rotates at higher speeds than the low spool. A triple spool engine would have a third, intermediate pressure compressor-turbine spool. [References to illustrative figures omitted.] "Gas generator" is defined as: The basic gas turbine engine consisting of the compressor, diffuser, combustor, and turbine-driven compressor. The gas generator, also called a core engine, is that part of a gas turbine engine that produces hot, high-velocity gases. The gas generator does not include the inlet duct, fan section, free power turbine, or tailpipe. An Illustrated Dictionary of Aviation, Edited by Bharat Kumar (McGraw-Hill Companies, Inc., 2005). We believe a misunderstanding of the basic gas generator, the definition of gas turbines, and the turbine component in a basic gas generator led to the classification of the gas generator at issue in HQ 087981 as a part. The definitions and the discussion from "Introduction to Gas Turbines for Non-Engineers", cited above, clarify that a basic gas turbine consists of a compressor, a combustion chamber and a turbine to power the compressor. The gas generator of the LM 5000 gas turbine consists of a compressor, a combustion chamber and a turbine to power the compressor. Therefore, it falls within the definition of a gas turbine. As the gas generator is not a turbojet or turbopropeller, it is classified as an "other gas turbine." In addition, we note that with regard to parts of gas turbines, the EN refer to components such as rotors, combustion chambers, vents, stator rings, rotor discs or wheels, fuel feed regulators and fuel nozzles. The gas generator at issue includes such parts, but is itself, not a part, but a gas turbine. HOLDING: The gas generator for a General Electric LM 5000 gas turbine engine imported without the power turbine with which it is to be coupled is classifiable as an other gas turbine of subheading 8411.82.80, HTSUS. Goods classifiable in this subheading are dutiable at the general column one rate of 2.5 percent ad valorem. EFFECT ON OTHER RULINGS: NY 087981, dated December 21, 1990, is hereby revoked. Pursuant to 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 8