Application for Further Review of Protest No. 0712-13-100009; Classification of SuperSand Filter Components

H240506 April 29, 2025 OT:RR:CTF:EMAIN H240506 DSR CATEGORY: Classification TARIFF NOS.: 3917.32.00; 4016.99.60; 7304.29.50; 7304.90.70; 7307.11.00; 7318.15.50; 7318.15.80; 7318.16.00; 7318.22.00; 8414.10.00; 8421.99.00 Center Director Machinery Center of Excellence and Expertise U.S. Customs and Border Protection 109 Shiloh Drive, Suite 300 Laredo, TX 78045 Re: Application for Further Review of Protest No. 0712-13-100009; Classification of SuperSand Filter Components Dear Center Director: The is our decision regarding the Application for Further Review (“AFR”) of Protest No. 0712-13-100009 filed on behalf of Westech Engineering, Inc. (“Protestant”). The Protest and AFR concern U.S. Customs and Border Protection’s (“CBP”) classification of various components imported together to be used in the assembly of the SuperSand Continuous Backwash Filter (“SuperSand Filter”) under the Harmonized Tariff Schedule of the United States (HTSUS). The AFR was forwarded to this office for consideration. FACTS: On February 13, 2012, the following components were entered together under subheading 8421.99.00, HTSUS, which provides for: “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gasses; parts thereof: Parts: Other.” (1) Air lift pump (2) Accessory kit (containing sand discharge pipes, measuring plug, measuring rod) (3) Air hoses (4) Splash hood (5) Sand washer (6) Box of pipes (7) Pipe joints 76 (8) Pipe joints 154 (9) Socket 154x175 mm (10) Spacing washers (11) M12 threaded rods (12) M6M12 nuts (13) M6M10 nuts (14) Washers (15) Screws M6SM 10x30 (16) Screws M6SM 10x50 The entry was liquidated on July 27, 2012, with the components classified as follows: (1) Air lift pump (8414.10.00, HTSUS) (2) Accessory kit (8414.10.00, HTSUS) (3) Air hoses (3917.31.00, HTSUS) (4) Splash hood (7309.00.00, HTSUS) (5) Sand washer (8414.10.00, HTSUS) (6) Box of pipes (7304.29.50, HTSUS) (7) Pipe joints 76 (7307.11.00, HTSUS) (8) Pipe joints 154 (7307.11.00, HTSUS) (9) Socket 154x175mm (7307.11.00, HTSUS) (10) Spacing washers (7318.21.00), HTSUS (11) M12 threaded rods (7318.16.00, HTSUS) (12) M6M10 Nuts (7318.16.00, HTSUS) (13) M6M12 Nuts (7318.16.00, HTSUS) (14) Washers (7318.21.00, HTSUS) (15) Screws M6SM 10x30 (7318.11.00, HTSUS) (16) Screws M6SM 10x50 (7318.11.00, HTSUS) On March 1, 2013, Protestant filed a corrected entry summary classifying the components under subheading 8421.21.00, HTSUS, which covers filtering or purifying machinery and apparatus for purifying water. On March 3, 2013, Protestant filed an amended protest containing additional arguments regarding classification. A complete and fully assembled SuperSand Filter is designed to be used in wastewater treatment plants, the pulp and paper industry, the chemical industry, the iron and steel industry, the mining and mineral industry, the food industry, and surface water treatment facilities for the purification of processed water and industrial wastewater. The SuperSand Filter employs a backwash rinse that is performed continuously while the tank is processing water. Raw water enters near the bottom of the filter’s tank by means of a stainless-steel water distributor. An air lift pump located at the center of the module draws the filter media (sand) from the bottom of the filter up into the wash box. As the filter media is released into the wash box, it falls into the sand scrubber, where the filtered solids are separated from the sand. Suspended solids are filtered out as the raw water flows up through the media bed. As the filtrate (cleaned water) reaches the top of the filter, it passes over the effluent barrier and is discharged. A portion of the filtrate is diverted through the sand washer and used for cleaning and transferring the waste solids. The washed sand falls onto the media bed for continued use. See WesTechPortal, SuperSand Continuous 2 Backwash for Uninterrupted Filtration, https://vimeo.com/365827627 (last visited Feb. 10, 2025). For ease of reference, the facts regarding each individual component subject to this protest are detailed in in the “Law and Analysis” section, infra. ISSUE: Whether the subject components are classified: (1) together as unassembled “filtering or purifying machinery” under heading 8421, HTSUS, (2) or individually under their respective headings. LAW AND ANALYSIS: A decision on classification and the rate and amount of duties chargeable is a protestable matter under 19 U.S.C. §1514(a)(2). The subject Protest was timely filed on January 18, 2013, within 180 days of liquidation of the entry, pursuant to 19 U.S.C. §1514(c)(3). Further review of Protest No. 0712-13-100009 is properly accorded pursuant to 19 C.F.R. 174.24(b), because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee, or by the customs courts. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 2(a) provides: Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled. The HTSUS headings under consideration are: 3917 Tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics: * * * 4016 Other articles of vulcanized rubber other than hard rubber: * * * 7304 Tubes, pipes and hollow profiles, seamless, of iron (other than cast iron) or steel: * * * 7307 Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: * * * 7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel: * * * 3 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: * * * 8421 Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof Note 1(g) to Section XVI (Chapters 84 - 85), HTSUS, states that Chapter 84, HTSUS, does not cover parts of general use, as defined in Note 2 to Section XV (Chapters 72 – 83), HTSUS, of base metal, or similar goods of plastics (Chapter 39).1 Note 2 to Section XV, HTSUS, states, in relevant part: Throughout the tariff schedule, the expression ‘parts of general use’ means: (a) Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metals….2 Therefore, if any of the subject components are found to be parts of general use, e.g., articles of heading 7318 (screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel), then those components are excluded from classification in Chapter 84 as filtering or purifying machinery or parts thereof. Note 2 to Section XVI, which governs the classification of “parts” within Chapters 84 and 85, states, in relevant part: Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, 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 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 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 or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally of headings 8517 and 8525 to 8528 are to be classified in heading 8517….3 1 Note 1(f) to Section XV (Chapters 72 – 83) excludes articles of Section XVI (Chapters 84 – 85). 2 Note 3 to Section XV, HTSUS, states that “Throughout the schedule, the expression ‘base metals’ means: iron and steel, copper, nickel, … .” Also, Note 6 to Section XV, HTSUS, states that “Unless the context otherwise requires, any reference in the tariff schedule to a base metal includes a reference to alloys which, by virtue of note 5 above, are to be classified as alloys of that metal.” 3 Additional U.S. Rule of Interpretation 1(c) to the HTSUS also limits the scope of Chapter 84 as pertains to “parts” by providing that “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory.” 4 In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to heading 8421, HTSUS, provide, in relevant part: (II) FILTERING AND PURIFYING MACHINERY AND APPARATUS FOR LIQUIDS AND GASES (A) Filtering and purifying machinery, etc., for liquids, including water softeners. The liquid filters of this group separate solid, fatty, colloidal, etc., particles from a liquid, for example, by passing it through a sheet, membrane or mass of porous material (e.g., cloth, felt, wire-cloth, skin, stoneware, porcelain, kieselguhr, sintered metallic powders, asbestos, paper pulp, cellulose, charcoal, animal black, sand)….The heading covers liquid filters whether of the gravity, suction (or vacuum) or pressure types. Initially, we address Protestant’s contention that the imported components, taken together, should be classified as “complete filters” of heading 8421, HTSUS, per GRI 2(a), supra.4 Protestant asserts that the components, considered en toto, are classified under subheading 8421.21.00, HTSUS, as a complete, unassembled filter for purifying water.5 However, Protestant confirmed that the subject entry does not contain the filtering media (sand), valves, certain piping, instrumentation, control panels, and supports that are essential to the operation of the SuperSand Filter.6 It is well-settled that goods are to be classified according to their condition as imported. See Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). Given that the missing components are essential to the operation of the SuperSand Filter device, the imported components do not possess the essential character of a complete filtering apparatus of heading 8421, HTSUS, by application of GRI 2(a). As such, each component must be classified separately as set forth below. 4 Protestant abandoned its entry claim that the imported components are classified as parts of filtering machinery under subheading 8421.99.00, HTSUS. 5 Protestant also alleges that the components are classified together as a finished filtering apparatus by application of the doctrine of entireties. However, the doctrine of entireties was superseded by GRI 2(a) when the HTSUS was implemented in 1989. See Zomax Optical Media, Inc. v. United States, 366 F. Supp. 2d 1326 (2005). 6 In a response to a request for information issued by CBP, Protestant responded by stating: “the items shipped are not a complete unit. They are components to a complete filter system, and they source other components such as the filter media (sand), piping, valves, instrumentation, control panels and supports. All of these components are then installed or assembled at the treatment plan[t] before the filter is functional.” 5 Air lift pump The air lift pump uses vacuum suction to pump water mixed with sand from the bottom of the filter to the sand washer, which is located above the sand bed and within the upper portion of the SuperSand Filter. The air lift pump itself is specially designed and fabricated for use with the SuperSand Filter, and it is not operational until filtering media is placed into it. As the instant pump uses vacuum suction, it is prima facie classifiable as a “vacuum pump” under heading 8414, HTSUS. Note 2(a) to Section XVI states that “[p]arts which are goods included in any of the headings of chapter 84 or 85 … are in all cases to be classified in their respective headings. Therefore, the air lift pump is classified under subheading 8414.10.00, HTSUS, as “Air or vacuum pumps, air or other gas compressors and fans…: Vacuum pumps.” Air hoses The air hoses are polyethylene tubes that are used in conjunction with the air lift pump to transfer compressed air from the top of the air lift pump to its bottom and facilitate the lifting of the sand. The hoses are flexible, not reinforced and do not possess fittings. The air lift pump cannot function without the air hoses. Protestant argues that the air hoses are integral to the operation of the filter, specifically the air lift pump. However, Additional U.S. Rule of Interpretation 1(c) directs that “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” Heading 3917, HTSUS, specifically provides for “Tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics.” Note 1 to Chapter 39, HTSUS, states: Throughout the tariff schedule the expression ‘plastics’ means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence. Moreover, Note 2 to Chapter 39, HTSUS, states the following: For the purposes of heading 3917, the expression "tubes, pipes and hoses" means hollow products, whether semimanufactures or finished products, of a kind generally used for conveying, conducting or distributing gases or liquids (for example, ribbed garden hose, perforated tubes). This expression also includes sausage casings and other lay-flat tubing. However, except for the last mentioned, those having an internal cross section other than round, oval, rectangular (in which the length does not exceed 1.5 times the width) or in the shape of a regular polygon are not to be regarded as tubes, pipes and hoses, but as profile shapes. 6 There are no applicable exclusions within the tariff that would require that the hoses be classified elsewhere.7 Therefore, even if the hoses are dedicated parts of the air lift pump, they would nevertheless be classified in heading 3917, HTSUS. Specifically, they are classified in subheading 3917.32.00, HTSUS, which provides for “Tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics: Other tubes, pipes and hoses: Other, not reinforced or otherwise combined with other materials, without fittings.” Accessory Kit The “accessory kit” contains stainless steel sand discharge pipes, a sand measuring rod, and a measuring plug. The sand discharge pipes release the dirty wash water produced by the filtering process, and they transport sand from one filter to another. The sand discharge pipes have an outside diameter of 50 mm and wall thickness of 2 mm. They are not of uniform cross-section, as information submitted by Protestant indicates that the pipes are belled out slightly on one end and machined down slightly on the other end. Protestant has stated that the pipes are likely seamless but has been unable to specify whether the pipes are cold-drawn or cold-rolled. As such, the stainless-steel discharge pipes are classified under subheading 7304.90.50, HTSUS, as “Tubes, pipes … of … steel: Other: Having a wall thickness of less than 4 mm or more.” The sand measuring rod is a stainless-steel rod that breaks into sections and has graduated measuring markings all along its length. There is a flat plate at the bottom of the sand measuring rod that is designed to engage in the moving sand bed. This allows the rod to be carried downwards with the sand so that measurements can be made with respect to time to determine the operational characteristics of the filter. The measuring rod is used only with the SuperSand Filter. Sand flow rate measurements from the sand measuring rod are used in combination with the wash water flow rate (obtained from measurements made with the measuring plug) to adjust the operation of the filter. The sand flow rate is a critical data point that is needed to operate the filter correctly and to optimize the filter unit. Applying Note 2(a) to Section XVI, the sand measuring rod is not prima facie classifiable within the headings of Chapter 84 or Chapter 85. Turning next to Note 2(b) to Section XVI, the courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States, 110 F.3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, at 778 (quoting Willoughby at 324). The second, set forth in United States v. Pompeo, 43 C.C.P.A. 9, 13 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the 7 Note 1(s) to Chapter 39 excludes from Chapter 39 “Articles of section XVI (machines and mechanical or electrical appliances).” The air hoses are not “machines” or “mechanical or electrical appliances.” 7 HTSUS. Under either line of cases, an imported item is not a part if it is “a separate and d