H292051

U.S. Customs and Border Protection HQ H292051 February 16, 2021 CLA-2 OT:RR:CTF:TCM H292051 EKR CATEGORY: Classification TARIFF NO.: 8414.59.65 Center Director, Machinery Center of Excellence and Expertise U.S. Customs and Border Protection Laredo Field Office 109 Shiloh Drive, Suite 300 Laredo, TX 78045 ATTN: Deborah L. Ryan, Supervisory Import Specialist RE: Application for Further Review of Protest No. 1401-17-100571; Classification of rotary blowers Dear Center Director: This is in response to the Application for Further Review (“AFR”) of Protest No. 1401-17-100571, dated October 30, 2017, filed on behalf of Kaeser Compressors, Inc. (“Kaeser”) in response to your classification of rotary blowers, model number EB 421-C, under the Harmonized Tariff Schedule of the United States (HTSUS). The articles were entered on November 22, 2016, and liquidated on October 6, 2017. FACTS: The products at issue are described in Kaeser’s marketing materials as “Rotary Lobe Blower Packages,” Model No. EB 421-C (“the blowers”). The protest states that the blowers are stationary, rotary “compressors” with a rated motor power of 37.26 kilowatts and 80 horsepower. The maximum operating pressure for the blowers is 15 pounds per square inch gauge (“psig”), with a typical operating pressure of 6.9 psig. Thus, when operating at sea level where atmospheric pressure is 14.7 pounds per square inch (“psi”), the blowers produce a maximum pressure of 29.7 psi, with a typical operating pressure of 21.6 psi. ISSUE: Whether the blowers are classified under subheading 8414.59.65, HTSUS, as “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: Fans: Other: Other: Other” or under subheading 8414.80.16, HTSUS, as “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: Other, except parts: Air compressors: Other.” LAW AND ANALYSIS: Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a)(2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 1401-17-100571 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because protestant alleges that the protest involves matters previously ruled upon by Customs and Border Protection (CBP) or by the courts but facts are alleged or legal arguments are presented which were not considered at the time of the original ruling. Specifically protestant argues that the industry-accepted standards for distinguishing between fans, blowers, and compressors have changed since CBP issued Headquarters Ruling letter (“HQ”) 952670, dated December 21, 1992, as evidenced by a Final Rule (“the DOE Final Rule”) published by the Department of Energy (“DOE”), establishing a definition of “compressor” for purposes of energy efficiency regulations. 81 FR 79991 (November 15, 2016). 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 on the basis of 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. Further, only those subheadings at the same level of indentation are comparable. GRI 6 provides as follows: For legal purposes, 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. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. The 2016 HTSUS provisions 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: Fans: 8414.59 Other: Other: 8414.59.65 Other. * * * * * 8414.80 Other, except parts: Air compressors: 8414.80.16 Other. In addition, 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 HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989). EN 84.14 explains that heading 8414, HTSUS, covers “machines and appliances, hand-operated or power driven, for the compression of air or other gases, or for creating a vacuum, and also machines for circulating air or other gases.” The EN notes that, “[t]here are several types of compressors, for example, reciprocating piston, centrifugal, axial and rotary compressors.” The EN also describes fans classified in heading 8414, HTSUS, as follows: (B) FANS These machines, which may or may not be fitted with integral motors, are designed either for delivering large volumes of air or other gases at relatively low pressure or merely for creating a movement of the surrounding air. Those of the first kind may act as air extractors or as blowers (e.g., industrial blowers used in wind tunnels). They consist of a propeller or blade-type impeller revolving in a casing or conduit, and function on the principle of rotary or centrifugal compressors. The second type are of more simple construction, and consist merely of a driven fan rotating in free air. Both CBP and Kaeser agree that the instant blowers are properly classified in heading 8414, HTSUS. Kaeser asserts that CBP erred in classifying the instant blowers as “fans” of subheading 8414.59.65, HTSUS, rather than “other” merchandise (specifically, “air compressors”) of subheading 8414.80.16, HTSUS. Kaeser notes that neither the tariff, nor the legal notes provide a definition for the terms “fan” or “compressor” as used in heading 8414. However, CBP has several rulings considering the meaning of these terms with respect to the subheadings in heading 8414, HTSUS. In HQ 952670, CBP considered the classification of centrifugal turbochargers for use in compression-ignition diesel engines. The turbochargers were designed to draw in outside air and compress its volume 3.5 to 4 times normal atmospheric pressure, before packing it into engine cylinders. CBP agreed with the importer that the turbochargers are correctly classified in heading 8414, HTSUS. In order to determine the correct subheading for the turbochargers, CBP considered the common meaning of the terms “fan” and “compressor,” as used in the subheadings to heading 8414, HTSUS. CBP noted that the ENs for heading 8414, HTSUS, suggest that compressors and fans can be distinguished from one another on the basis of operating pressures, with fans operating at low pressure, and compressors operating at high pressures, although the ENs do not specify typical operating pressures for either apparatus. CBP next considered general lexicons, but found them unhelpful in distinguishing fans from compressors. Ultimately, CBP used a technical resource, Van Nostrand’s Scientific Encyclopedia (1963), to make the necessary distinction. Van Nostrand’s Scientific Encyclopedia distinguished fans, blowers, and compressors from one another on the basis on final operating pressure: defining “fans” as machines creating a final pressure below 1 psi, “blowers” as machines creating a final pressure between 1 and 35 

Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a)(2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 1401-17-100571 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because protestant alleges that the protest involves matters previously ruled upon by Customs and Border Protection (CBP) or by the courts but facts are alleged or legal arguments are presented which were not considered at the time of the original ruling. Specifically protestant argues that the industry-accepted standards for distinguishing between fans, blowers, and compressors have changed since CBP issued Headquarters Ruling letter (“HQ”) 952670, dated December 21, 1992, as evidenced by a Final Rule (“the DOE Final Rule”) published by the Department of Energy (“DOE”), establishing a definition of “compressor” for purposes of energy efficiency regulations. 81 FR 79991 (November 15, 2016). 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 on the basis of 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. Further, only those subheadings at the same level of indentation are comparable. GRI 6 provides as follows: For legal purposes, 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 unde