CLA-2 OT:RR:CTF:TCM H238488 LWF
Port Director
Service Port of Blaine
U.S. Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230
Attn: Christian Wassan, Supervisory Import Specialist
RE: Application for Further Review (AFR) of Protest No. 3004-12-100044; Classification of a colorant dispensing machine from Italy
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3004-12-100044, timely filed on December 3, 2012, by ICTC Holdings Corp., HERO Products Group (“HERO”). The AFR concerns U.S. Customs and Border Protection’s (CBP) classification of a colorant dispensing machine under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue consists of HERO’s “Eureka A450 Auto Dispenser 12P with computer” (the “Eureka A450”), an automatic colorant dispenser from Italy designed to dispense—via progressive cavity pumps—paint colorant from one or more (of 12 total) internal reservoirs. Each colorant reservoir of the Eureka A450 is equipped with a dedicated progressive cavity pump that is used to dispense colorant into a can of base color paint in order to produce a customized color for the retail customer. The operator of the Eureka A450 determines the amount of colorant to be dispensed into the base can via computer software on an ADP machine that is imported with the Eureka A450 and is connected to the colorant dispenser. Once the colorants have been dispensed into the base can, the base can and colorants are mixed by a wholly different machine that is not part of the instant merchandise.
HERO entered the Eureka A450 at the Service Port of Blaine on April 14, 2012 under subheading 8479.82.00, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof: Other machines and mechanical appliances: Mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines.” CBP issued a CF-28 Request for Additional Information to HERO on May 31, 2012, and based on product information submitted by HERO, CBP liquidated the entry on July 13, 2012 under subheading 8424.89.00, HTSUS, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof: Other appliances: Other.”
HERO filed its protest on December 3, 2012, and asserts that the Eureka A450 is substantially similar to ink and paint dispensing machines that CBP previously classified in subheading 8413.19.00, HTSUS, which provides for “Pumps for liquid, whether or not fitted with a measuring device; liquid elevators; parts thereof: Pumps fitted or designed to be fitted with a measuring device: Other.” See New York Ruling Letter (“NY”) N024933, dated April 10, 2008.
ISSUE:
Whether HERO’s Eureka A450 colorant dispensing machine is classified under heading 8413, HTSUS, as a pump for liquids, fitted with a measuring device; heading 8424, HTSUS, as a mechanical appliance for projecting, dispersing or spraying liquids or powders; heading 8471, HTSUS, as automatic data processing machines and units thereof; or heading 8479, HTSUS, as machines and mechanical appliances having individual functions, not specified or included elsewhere in Chapter 84.
LAW AND ANALYSIS:
As an initial matter, we note that the CBP’s decision to liquidate the instant merchandise under subheading 8424.89.00, HTSUS, is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. Protest No. 3004-12-100044 was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004.
Further Review of the protest is properly accorded to HERO, pursuant to 19 C.F.R. § 174.24(a), because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, HERO asserts that the Eureka A450 is substantially similar to ink and paint dispensing machines that CBP previously classified in subheading 8413.19.00, HTSUS, via New York Ruling Letter (“NY”) N024933, dated April 10, 2008.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are as follows:
8413 Pumps for liquids, whether or not fitted with a measuring device; liquid elevators
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8424 Mechanical appliances (whether or not hand-operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar het projecting machines
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8471 Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machine for processing such data, not elsewhere specified or included
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8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof
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Note 4 to Section XVI, HTSUS, states:
Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or Chapter 85, then the whole falls to be classified in the heading appropriate to that function.
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The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to Section XVI, provide, in relevant part, as follows:
(VII) FUNCTIONAL UNITS
(Section Note 4)
This Note applies when a machine (including a combination of machines) consists of separate components which are intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or, more frequently, Chapter 85. The whole then falls to be classified in the heading appropriate to that function, whether the various components (for convenience or other reasons) remain separate or are interconnected by piping (carrying air, compressed gas, oil, etc.), by devices used to transmit power, by electric cables or by other devices.
For the purposes of this Note, the expression “ intended to contribute together to a clearly defined function ” covers only machines and combinations of machines essential to the performance of the function specific to the functional unit as a whole, and thus excludes machines or appliances fulfilling auxiliary functions and which do not contribute to the function of the whole.
The following are examples of functional units of this type within the meaning of Note 4 to this Section :
…
(6) Letter sorting systems consisting essentially of coding desks, pre-sorting channel systems, intermediate sorters and final sorters, the whole being controlled by an automatic data processing machine (heading 84.72).
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EN 84.13 provides, in pertinent part, as follows:
The heading also includes delivery pumps equipped with measuring or price calculating mechanisms such as are used for supplying petrol or oil in garages, and also pumps specially designed for use with other machines, vehicles, etc. (including petrol, oil or water pumps for internal combustion engines, and pumps for man-made textile fibre spinning machines).
…
Subheading Explanatory Note.
Subheadings 8413.11 and 8413.19
These subheadings cover only those pumps, of whatever type, which form, or have been designed to form, a unit with a device permitting the volumetric control of the quantity of liquid discharged, whether or not this device is presented at the same time as the pump.
This control device may be very simple (for example, a calibrated globe or unit) or, on the contrary, consist of more complex mechanisms automatically controlling the stopping of the pump when a given total quantity is discharged (such as, for example, a delivery pump comprising a calibrated cylinder (measuring cylinder) and a device permitting, on the one hand, the determining of a desired quantity and, on the other, stopping the pump motor when the predetermined quantity is obtained) or fulfilling other operations connected with volumetric control proper (for example, pumps for integration of totals, prepayment pumps, price-calculating pumps, sampling pumps, automatic mixture regulating pumps and automatic dosage pumps).
On the other hand, when, for example, the measuring device is designed to be simply mounted on the tube through which the liquid set in motion by the pump flows, each of the two units (pump and measuring device) are to be classified in their own headings, even when presented together.
These subheadings cover, for example, pumps for delivering petrol or other motor fuels and lubricants as well as pumps with a measuring device for use in food shops, laboratories and various industrial activities.
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EN 84.24 provides, in pertinent part, as follows:
This heading covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray.
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In evaluating the correct classification of HERO’s Eureka A450 colorant dispensing machine within Chapter 84, HTSUS, CBP emphasizes that GRI 1 requires that classification be determined first according to the terms of the heading of the tariff schedule and any relative section or chapter notes. (Emphasis added). Here, Note 4 to Section XVI, HTSUS, contains instructions pertaining to the classification of machines of chapters 84 and 85 that consist of individual components intended to contribute together to a clearly defined function covered by one of the headings of Section XVI, HTSUS. Consequently, because HERO’s ADP controlled colorant dispenser integrates several progressive cavity pumps together with a separate ADP machine, CBP calls initial attention to the application of Note 4, Section XVI, HTSUS.
Note 4 to Section XVI, HTSUS, states that a machine consisting of individual components interconnected by transmission devices is classified in the headings of Chapter 84 or Chapter 85, HTSUS, when its constituent components are intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or Chapter 85, HTSUS. The phrase in Note 4, Section XVI, HTSUS, “intended to contribute together to a clearly defined function,” is clarified by EN(VII) to Section XVI, HS, which states in relevant part:
For the purposes of this Note, the expression “intended to contribute together to a clearly defined function” covers only machines and combinations of machines essential to the performance of the function specific to the functional unit as a whole, and thus excludes machines or appliances fulfilling auxiliary functions and which do not contribute to the function of the whole.
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Moreover, EN(VII) to Section XVI, HS, specifically describes an example in which a machine of Chapter 84 is combined with an ADP machine to form a functional unit pursuant to Note 4 to Section XVI, HTSUS:
The following are examples of functional units of this type within the meaning of Note 4 to this Section :
…
(6) Letter sorting systems consisting essentially of coding desks, pre-sorting channel systems, intermediate sorters and final sorters, the whole being controlled by an automatic data processing machine (heading 84.72). (Emphasis added).
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Similar to the example of the ADP-controlled letter sorting system provided by EN(VII) to Section XVI, HS, the Eureka A450 consists, in relevant part, of several progressive cavity pumps that are connected via data cables to an integrated ADP machine equipped with control software. Together, the pumps and ADP machine (which are in and of themselves “machines”), perform separate but complementary functions that are described in different headings of Section XVI. See Note 2 to Section XVI, HTSUS; EN(II) to Section XVI, HS. First, when a user selects a customized color formulation, the ADP machine transmits instructions to the progressive cavity pumps to control the amount of colorant that is to be dispensed into a can of base color paint. Second, upon receipt of instructions from the ADP machine, the progressive cavity pumps dispense paint colorant from one or more internal colorant reservoirs into the base can. Based upon these essential functions that enable the Erueka A450 to transmit instructions from the ADP machine to the pumps to accomplish the clearly defined function of dispensing colorant, CBP concludes that the Eureka A450 is correctly classified as a whole, pursuant to Note 4 to Section XVI, in the heading appropriate to the device’s function.
Heading 8413, HTSUS, provides for “Pumps for liquids, whether or not fitted with a measuring device; liquid elevators,” and covers most machines and
appliances for raising or otherwise continuously displacing volumes of liquids, including delivery pumps equipped with measuring or price-calculating mechanisms. See EN 84.13, HS. Specifically, subheading 8413.19, HTSUS, provides for other pumps fitted or designed to be fitted with a measuring device, which form a unit permitting the volumetric control of a quantity of liquid discharged. See Subheading Explanatory Note 8413.19, HS.
CBP has previously considered the classification of ink and colorant dispensers in heading 8413, HTSUS. For example, in New York Ruling Letter (“NY”) N024933, dated April 10, 2008, CBP classified several models of computerized ink and paint dispensing machines in subheading 8413.19.00, HTSUS, as pumps for liquids fitted or designed to be fitted with a measuring device. There, CBP described the merchandise as machines, each with fully incorporated ADP units, capable of dispensing precise amounts of ink or paint according to mixture formulas inputted and stored on the ADP units. To produce a desired ink or paint formulation, software installed on a machine’s ADP unit analyzed an operator-generated colorant formula and then transmitted electronic instructions to its pumps and valves for the release and mixing of specific quantities of primary colors.
Similarly, in Headquarters Ruling Letter (“HQ”) 965465, dated July 23, 2002, CBP issued a protest decision classifying the “Colorsat Compact M-16WB ink dispensing machine” in subheading 8413.19.00, HTSUS. Like the computerized ink and paint dispensing machines in NY N024933, the Colorsat Compact M-16WB also incorporated an ADP unit with installed software to allow for the precise dispensing and mixing of ink according to user-generated mixture formulas. In classifying the device in heading 8413, HTSUS, as a pump for liquid, CBP specifically rejected classifying the merchandise elsewhere in Chapter 84, writing that the ink dispensing machine was not identical or substantially similar to the exemplars of “machines for uses ancillary to printing,” provided by EN 84.43, HS. Instead, because the Colorsat Compact M-16WB possessed an ADP device for the volumetric control of a quantity of liquid discharged for use in an industrial activity, CBP concluded that the merchandise fell within the description of certain pumps of EN 84.13, HS (Subheading Explanatory Note for subheadings 8413.11 and 8413.19), and classified the machine in subheading 8413.19.00, HTSUS.
Here, we find that HERO’s Eureka A450 colorant dispensing machine is substantially similar to the colorant and ink dispensing machines that CBP previously classified in heading 8413, HTSUS, in NY N024933 and HQ 965465. The Eureka A450 consists of several ADP-controlled progressive cavity pumps that dispense paint colorant from one or more (of 12 total) internal reservoirs into a can of base color paint in order to produce a customized color for the retail customer. The amount of colorant dispensed into the base can of paint is determined by operator input via computer software on an ADP machine that is connected to the colorant dispenser. As such, the ADP-controlled Eureka A450 is fully described under the text of heading 8413, HTSUS, as a delivery pump equipped with a measuring mechanism. Specifically, the merchandise falls within the exemplars provided by Subheading Explanatory Note 8413.19, HS, as a pump fitted with a measuring device, thereby forming a unit permitting the volumetric control of a quantity of liquid. See also EN(VII) to Section XVI, HS. Consequently, we conclude that the Eureka A450 is properly classified in heading 8413, HTSUS, pursuant to Note 4 to Section XVI, HTSUS.
As a final matter, we note that because the Eureka A450 is specifically provided for in heading 8413, HTSUS, it is not classifiable in heading 8479, HTSUS, as machines and mechanical appliances having individual functions, not specified or included elsewhere in Chapter 84.
HOLDING:
By application of GRI 1, Note 4 to Section XVI, HTSUS, HERO’s “Eureka A450 Auto Dispenser 12P with computer” is classified in heading 8413, HTSUS. Specifically, it is classifiable in subheading 8413.19.00, HTSUS, which provides for “Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; part thereof: Pumps fitted or designed to be fitted with a measuring device: Other.” The column one, general rate of duty is free. You are instructed to GRANT the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 re-liquidation 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 International Trade, 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 http://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