Richard K. Cacioppo, Esq.
Water Tech, L.L.C.
44 West Ferris Street
East Brunswick, New Jersey 08816

RE: Request for reconsideration of NY L82232 dated February 7, 2005; Tariff classification of a pool vacuum imported from Taiwan

Dear Mr. Cacioppo:

This letter is in reference to your request, dated November 29, 2006, on behalf of Water Tech Corp., for reconsideration of NY L82232, dated February 7, 2005, concerning the classification of a pool vacuum under the Harmonized Tariff Schedule of the United States (HTSUS). In NY L82232, the National Commodity Specialist Division of U.S. Customs and Border Protection (CBP) classified the pool vacuum, style WV-001, as an accessory for swimming pools in subheading 9506.99.5500, HTSUS. In light of the additional factual evidence provided to our office, including a supplemental submission dated May 7, 2008, we have determined that the classification in NY L82232 is in error. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on November 13, 2008, in Volume 42, Number 47, of the CUSTOMS BULLETIN. CBP received no comments in response to the notice.

In your correspondence, you also requested that CBP classify two similar models of pool vacuums marketed by Water Tech, styles WV-002 and WV-003. CBP declines to issue a prospective ruling pursuant to 19 C.F.R. § 177.7(a) on these two devices because it would be in conflict with our position in NY L82232. It is contrary to CBP policy to issue rulings in conflict with each other. You may resubmit your request, if necessary, after the publication of the Final Notice of the revocation of our decision in NY L82232 in the Customs Bulletin.


The imported pool vacuum, style WV-001, is marketed by Water Tech as the “Pool Blaster Max” (formerly as the “Pool Buster Max”). In NY L82232, CBP described it as “a portable, hand-held wet/dry vacuum cleaner for all types of pools … [that] is designed to attach to any telescopic pole.” This battery-charged device contains its own internal vacuum motor that creates a suction to collect debris such as hair, sand pebbles, and leaves from the water in a pool or spa. This waste is captured with and stored in a reusable fine filter bag. The device may be operated with or without the accompanying vacuum head attachment.

The device is advertised, marketed, and sold principally for use in home pools and spas. The marketing brochure published by Water Tech states that the device: “contains everything you need in order to clean all gunite, vinyl, and fiberglass pools and spas. [It] is designed for both in-ground and above-ground pools. Both wheel and brush attachments are provided.” The instruction manual published by Water Tech also states that the device is “not intended for use as an all-purpose vacuum cleaner.” While it may be operated for a short period of time above water, its vacuuming function is intended for operation only when it is submerged in water. The cleaning capacity is rated as 40-50 gallons per minute. According to Water Tech, the device is “designed, manufactured, imported and marketed worldwide as [a] water or wet vacuum cleaner[].”

Water Tech claims that the device “not only vacuum[s], but filter[s] and purify[ies] all pools of water, including both indoor and outdoor domestic spas, hot tubs, swimming pools, fountains, as we[ll] as ponds, fish tanks and aquariums, rain water collection tanks, cisterns, shrimp tanks and various backyard water gardens, waterfalls, etc.” It is the position of Water Tech that its device is effective in any pool of water. Water Tech explains that while its device is marketed for universal usage in water, its device is primarily intended for usage by the owners of spas, followed by above-ground pools, and then below-ground pools. According to Water Tech, the owners of spas often clean the water on their own, given that spas hold a substantially smaller volume of water than do swimming pools.

Data provided by the Association of Pool and Spa Professionals (formerly the National Pool and Spa Institute) shows that there are three general categories in the pool and spa industry: in-ground pools, above-ground pools, and spas/hot tubs. Water Tech explains that, unlike the two types of pools, spas lack extensive main pumps and filter systems for use with automatic vacuuming machinery that is often employed when cleaning swimming pools. Water Tech has also explained that the device is inefficient when vacuuming in-ground and above-ground pools, as opposed to when it is used in spas, which are smaller and shallower than those pools.


What is the correct classification of the pool vacuum under the HTSUS?


Classification under the HTSUS is made 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. The HTSUS provisions under consideration are as follows:

8421 Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof: Filtering or purifying machinery and apparatus for liquids: 8421.21.0000 For filtering or purifying water… * * *

8508 Vacuum cleaners; parts thereof: With self-contained electric motor: 8508.11.000 Of a power not exceeding 1,500 W and having a dust bag or other receptacle capacity not exceeding 20 I… * * *

9506 Articles and equipment for general physical exercise, gynastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Other: 9506.99 Other: 9506.99.5500 Swimming pools and wading pools and parts and accessories thereof…

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). Note 3 to Chapter 95, HTSUS, states: “[s]ubject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles”. It appears that in NY L82232, note 3 was the basis for classification of the subject merchandise in heading 9506, HTSUS, as an accessory of a swimming and wading pool. However, this overlooks the fact that Note 3 is subject to Note 1 to Chapter 95, HTSUS. Note 1(m) to Chapter 95 excludes “filtering or purifying machinery and apparatus for liquids or gases (heading 84.21)” from classification in Chapter 95. Accordingly, before determining if the subject merchandise is classifiable as an accessory of a swimming pool by operation of Note 3 to Chapter 95, we must first determine if it fits the terms of heading 8421, HTSUS

Heading 8421 is a use provision that provides for, in relevant part, “filtering or purifying machinery and apparatus for liquids.” EN 84.21 describes the function of liquid filters within this heading as the “separat[ion] of solid, fatty, colloidal, etc., particles from a liquid, for example, by passing it through a sheet, membrane or mass porous material[.]” The Court of Appeals for the Federal Circuit (CAFC) has defined the term “filter” per the 1986 edition of Webster’s Third New International Dictionary:

The dictionary defines the verb "filter" in relevant part as "to subject to the action of a filter: pass (a liquid or gas) through a filter for the purpose of purifying or separating or both." Id. at 850 (emphasis added). The noun filter is defined as "a porous article or mass (as of cloth, paper, or sand) that serves as a medium for separating from a liquid or gas passed through it matter held in suspension or dissolved impurities or coloring matter." Id. (emphasis added).

Airflow Technology, Inc. v. United States, 2008 U.S. App. LEXIS 9165 at 11-12 (Fed. Cir. Apr. 28, 2008). The definition of “purify,” is not set forth in the HTSUS or the ENs, but it is defined by the same dictionary as meaning, in relevant part, “to make pure: as a: to clear from material defilement or imperfection: free from impurities or noxious matter <~ ing air by filtration> ….” Id. at 1846.

The principal function of the device is to filter and purify the water contained in a swimming pool or spa. It removes solid debris by suctioning it through a filter bag. The water is filtered through the porous filter bag, leaving only the debris inside for later removal from the device. This suction-based process of filtration is within the scope of heading 8421. See, e.g., HQ 958821, dated June 28, 1996 (classifying tanks designed to contain filtration devices for swimming pools in heading 8421); HQ 961455 (classifying a potable water system that fills a tank with filtered water in heading 8421). The ENs to heading 8421 specify that it covers “liquid filters whether of gravity, suction (or vacuum) or pressure types.” Cf. NY K87340 dated July 21, 2004 (wherein CBP classified chlorine generator and filter pump units in heading 8421). We also note that Water Tech’s own request for reconsideration concedes that the device is described by heading 8421, although it makes no arguments for or against classification in that provision. To this end, Water Tech stated that the device “not only vacuums water, but also filters and purifies it.” Thus, the subject merchandise is classifiable under heading 8421, HTSUS, as a filtering or purifying apparatus.

Accordingly, we find that the subject merchandise is excluded from classification in Chapter 95, HTSUS, by virtue of Note 1(m) to Chapter 95, as it is a filtering apparatus for liquids under heading 8421, HTSUS.

It is the position of Water Tech that the device is excluded from classification in Chapter 95, HTSUS, because it is not an accessory of swimming pools, and is thus classifiable as a “vacuum cleaner” of heading 8508.( We will omit discussion on the first prong of counsel’s argument, as we have already found that the subject merchandise is excluded from Chapter 95, HTSUS, by application of Note 1(m). However, regarding heading 8508, HTSUS, we note that CBP has previously defined “vacuum cleaner” on the basis of its common meaning: “In The Random House College Dictionary, Random House, 1973, "vacuum cleaner" is defined as "an electrical apparatus for cleaning carpets, floors, furniture, etc., by suction.” HQ W967698, dated March 10, 2006. (The 1986 edition of Webster’s Third New International Dictionary contains a substantially similar definition.) CBP has found that the definitions in the dictionaries and the ENs stress that a vacuum cleaner's method of cleaning is by “suction.” See HQ W967698, dated March 10, 2006. However, “suction” is not the only essential characteristic of a vacuum cleaner of heading 8508. Vacuum cleaners of this heading must also filter the air stream as part of the suction process. The characteristics of suction and filtration of the air stream are emphasized in the description of vacuum cleaners in the ENs to Heading 8508: Vacuum cleaners perform two functions: the suction of material, including dust, and the filtering of the air stream.  Suction is effected by means of a turbine fixed directly onto the shaft of the motor, turning at high velocity.  The dust and other material are collected in an internal or external dust bag or other receptacle, whereas the air sucked in and filtered is also used to cool the motor. CBP has consistently applied these two criteria, which are also set forth in the ENs to heading 8508, to classify an article as a vacuum cleaner of this heading. See HQ 967698, HQ 967904, dated December 21, 2005; NY K85051, dated May 17, 2004; HQ 962622, dated August 11, 1999.

The device at issue does not fit the terms of heading 8508, HTSUS, because it only filters water, and not the air stream. As opposed to the wet/dry vacuums, which are classifiable in heading 8508, this device operates only when it is submerged in water. And, to this end, the characterization of the device as a “wet/dry vacuum” in NY L82232 was in error. CBP notes that the device is distinguishable from articles like the Vaqua wet/dry vacuum described in NY L85706, dated July 8, 2005, as “a water filtration, canister-style vacuum cleaner used in the home.” The Vaqua uses water to pick up dust and debris and filters the air stream, but it is not operational when submersed completely in water. It is noteworthy that wet and wet/dry vacuums suction and store water in a receptacle. When the device at issue suctions water, it retains only the debris filtered from the water. We conclude that the device does not meet the terms of a “vacuum cleaner” and is therefore not classifiable in heading 8508, HTSUS. The device does fit the terms of heading 8421, HTSUS, which provides for, in pertinent part, “filtering or purifying machinery or apparatus, for liquids or gases”.


By application of GRI 1, the pool vacuum, WV-001, is classified in heading 8421, HTSUS, as “[c]entrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof[,]” and is specifically provided for in subheading 8421.21.0000, which provides for “[f]iltering or purifying machinery and apparatus for liquids: For filtering or purifying water.” The 2008 column one, general rate of duty is free.

Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at


NY L82232, dated February 7, 2005, is hereby REVOKED.

Myles B. Harmon, Director
Commercial and Trade Facilitation Division