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HQ 967393





February 7, 2005

CLA-2 RR:CR:GC 967393 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8421.19.9000

Port Director
Port of Newark, New York
1100 Raymond Blvd, Suite 402

Newark, NJ 07102

Attn: Protest and Control

RE: Further Review of Protest No. 4601-04-100947; Separator; General Rule of Interpretation 3.

Dear Port Director:

This is our decision on Protest 4601-04-100947, filed by Brauner International, Inc. on behalf of the importer, Westfalia Separator, Inc., against your classification of what was described on the entry documents as a “separator” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue is advertised as a “Separator ODB 260-72-107,” produced by Westfalia Separator. Product literature submitted by the protestant to the Port depicts the model DA 250 and DA 260 separators or concentrators. However, in response to a CF28, the protestant replied that that the ODB 260 is a prototype machine that functions in the same manner as the DA 250 except for the fact that the DA 250 is used on starch whereas the DA 260 is used on oil.

The ODB 250 consists of the following components: clarified liquid discharge, centripetal pump, discs, nozzles, concentrate catcher, inlet chamber, and frame drain. The frame is made of modular cast iron, and consists of a base, column, and drive housing. The drive housing is located on the top of the unit and is connected with the column by a hydraulic cylinder. Components such as the hood, lower section of the frame, the feed and discharge connections are also part of the frame. The machine is driven by a three-phase AC, V3 flange-type motor which is designed for the necessary belt pull. Another version of the ODB 250 contains a washing device and defoaming pump to wash the separated material (which happens to be starch). The product literature states, “This centrifuge is equipped with a disc-type bowl at the periphery of which nozzles are fitted for discharging the concentrate.” The ODB 260 contains similar components.

The product literature refers to the ODB 250 and ODB 260 as centrifuges numerous times. For example, the ODB 250 literature states, “This centrifuge is equipped with a disc-type bowl at the periphery of which nozzles are fitted for discharging the concentrate.” The brochure further describes how the machine functions:

The suspension is fed into the bowl through the feed (9) and is clarified in the disc set (3). It is then discharged without foam and under pressure by the centripetal pump (3) through the discharge (1). The separated solids (concentrate) are continuously discharged through the nozzles (5) into the concentrate catcher (6). The solids concentration depends on the throughout capacity, the percentage of solids in the feed and the nozzle diameter. The required degree of concentration can be obtained by changing the nozzles and adjusting the feed rate.

The literature for the ODB 260 refers to it as a nozzle centrifuge. The literature also states that separation of the materials is achieved by “centrifugal forces.”

The machine was entered on April 22, 2003 under subheading 8421.29.0015, HTSUSA, which provides for “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof: Filtering or purifying machinery and apparatus: Other: Other: Oil-separation equipment.” However, the entry was liquidated under the subheading 8421.19.9000, HTSUSA, which provides for “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof: Centrifuges, including centrifugal dryers: Other: Other.”

The entry was liquidated on April 2, 2004, and this protest was filed on April 15, 2004.

ISSUE:

Is the proper tariff classification for this article as a centrifuge, under subheading 8421.19.90, HTSUS, or as filtering or purifying machinery, under subheading 8421.29.00, HTSUS?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed and that the classification made at the port of entry is protestable (see 19 U.S.C. § 1514(a)(2) and (5)).

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 may then be applied. GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are prima facie classifiable under two or more headings. In such a case, classification of the goods shall be effected as follows: “[GRI 3](a) [t]he heading which provides the most specific description shall be preferred to headings providing a more general description.” According to GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. The relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

The HTSUS provisions under consideration (2003) are as follows:

8421 Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof: Centrifuges, including centrifugal dryers: 8421.19 Other:
8421.19.9000 Other;
Filtering or purifying machinery and apparatus for liquids: 8421.29.00 Other:
Other:
8421.29.0015 Oil-separation equipment.

The protestant argues that the equipment is correctly classified as oil separator parts and that the brochure submitted to the Port states that the instant article functions as a part of oil separator equipment.

You argue that this article is properly classified as a centrifuge under subheading 8421.19.90, HTSUS, rather than classified as filtering machinery under subheading 8421.29.00, HTSUS.

For classification under heading 8421, HTSUS, the device must be “machinery or apparatus.” Note 5, Section XVI, HTSUS, defines “machine” as “any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85.” This device satisfies this description because it is prima facie classifiable as either a centrifuge or filtering machinery and apparatus for liquids, which is provided for in heading 8421, HTSUS.

GRI 6 permits us to compare subheadings within the same heading, provided that only subheadings at the same level are comparable. Under GRI 6, the relative section, chapter and subchapter notes apply, unless the context otherwise requires. Because only subheadings at the same level are comparable, it is necessary to compare the terms of the subheadings at each indentation before going on to consider competing subheadings at the next indentation. See, e.g., HQ 962592, dated April 9, 2001. In this case, the first comparison between subheadings occurs at the first indentation comparing “centrifuges, including centrifugal dryers” to “filtering or purifying apparatus or machinery for liquids” (see above).

According to GRI 3(a), when goods are, prima facie, classifiable under two or more headings, “[T]he heading which provides the most specific description shall be preferred to headings providing a more general description.” Thus, the merchandise in question must be classified pursuant to the heading providing the most specific description. See Better Home Plastics Corp v. U.S., 20 C.I.T. 221, 222; 916 F. Supp. 1265, 1266 (1996). Moreover, Explanatory Note (IV)(a) to GRI 3(a) states in pertinent part that: “a description by name is more descriptive than a description by class.” The term “filter or purifying apparatus or machinery for liquids” is less descriptive of the article under consideration than the term “centrifuges.” See HQ 966033, dated Dec. 23, 2002.

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 HTSUSA and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 84.21 states in relevant part, “This heading covers: (I) Machines which, by the use of centrifugal force, completely or partly separate substances according to their different specific gravities, or which remove the moisture from wet substances. . . . [and] (II) Filtering or purifying machinery and apparatus for liquids . . . .” The EN further states that:

Most [centrifuges] consist essentially of a perforated plate, drum, basket, or bowl, etc. revolving at great speed in a stationary collector, usually cylindrical, against the walls of which the expelled materials are projected by centrifugal force. . . . In [some] types the solid ingredients are retained in the perforated revolving drum, basket, etc., and the liquid ingredients expelled. . . .

This article is classified under subheading 8421.19, HTSUS, as a centrifuge, according to GRI 3(a). In this case, subheading 8421.19, HTSUS, is the provision with the requirements that are more difficult to satisfy and that describes the article with the greater degree of accuracy and certainty. The filtering or purifying machinery provisions of heading 8421 cover a wide range of liquid filters (e.g. physical or mechanical, chemical, magnetic, electro-magnetic, electrostatic, etc.), and also cover a wide range of filtration media and types (gravity, suction or pressure). On the other hand, the centrifuge provision covers a narrower range of articles, namely centrifuges, which separate materials in a specific manner, namely expelling the separated material against an outer wall by centrifugal force. This describes exactly how the instant article operates. Thus, we find that the instant machine is properly classified as a centrifuge because the centrifuge provision provides the most accurate and complete description of the article.

HOLDING:

The Separator ODB 260 is provided for in heading 8421. Under the authority of GRI 3(a) applied through GRI 6 to the subheading level, it is classifiable in subheading 8421.19.9000, HTSUSA, which provides for “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof: Centrifuges, including centrifugal dryers: Other: Other.” The 2003 column one, general rate of duty is 1.3 percent ad valorem.

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

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), 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 reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of 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 www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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