which are ejector pumps powered by water from a sink faucet, both pumps being in chief value of plastic, held to be pumps for liquids, operated by hand or by a power unit, in item 660.90 ̊ of the Tariff Schedules of the United States, as claimed.

AUXILIARY USE-NOT CONTROLLING OF CLASSIFICATION

The fact that the turbine or hose on a portable siphon pump may be used to siphon water, and the bulb or chamber portion of the pump to prime the siphoning action, does not defeat classification of the article as a pump in view of unequivocal testimony of record that the article is primarily a pump and that it would be recognized by a mechanical engineer as a pump. Classification of an article is controlled by what the imported article was constructed for and designed to do. (Citing cases.)

United States Customs Court, First Division

Protests 66/15260, etc., against the decision of the collector of customs at the port of New York

[Judgment for plaintiff.]

(Decided July 23, 1970)

Siegel, Mandell & Davidson (Joseph S. Kaplan of counsel) for the plaintiff. William D. Ruckelshaus, Assistant Attorney General (Owen J. Rader and Andrew P. Vance, trial attorneys), for the defendant.

Before WATSON, MALETZ, and RE, Judges

RE, Judge: The jurisdiction of the court has been duly invoked to determine the proper classification for customs duty purposes of certain merchandise described on the invoices accompanying the entry papers as "portable siphon pumps" and "automatic drain siphon pumps". The merchandise was imported from Japan into the United States through the port of New York. It is covered by five protests which were consolidated for purposes of trial.

The customs officials classified both the portable siphon pumps and the automatic drain pumps within the purview of item 774.60 of the Tariff Schedules of the United States (TSUS) which provides for articles not specially provided for, of rubber or plastics, at the rate of 17 per centum ad valorem.

It is the contention of plaintiff that the articles in issue should properly have been classified as pumps for liquids, of the kind provided for in item 660.90 of TSUS, dutiable at 12 per centum ad valorem. Alternatively, plaintiff claims that the articles are properly classifiable within the provisions of item 772.65 of TSUS for hose, pipe, and tubing, with duty at the rate of 812 per centum ad valorem.

The following are the pertinent statutory provisions from the Tariff Schedules of the United States:

As classified:

"Articles not specially provided for, of rubber or plastics:

660.90 "Pumps for liquids, whether or not fitted with measuring devices; *** all the foregoing whether operated by hand or by any kind of power unit, and parts thereof

Alternative claimed classification:

17% ad val."

12% ad val."

8.5% ad val.”

772.65 "Hose, pipe, and tubing, all the foregoing not specially provided for, of rubber or plastics, suitable for conducting gases or fiquids, with or without attached fittings. Samples of the portable siphon pumps, and of the automatic drain. pumps, were received in evidence as exhibits 1 and 2 respectively. The parties are in agreement that the articles in issue are in chief value of plastic, and that they are not articles of textile materials, stone, ceramic ware, glass or of other materials provided for in schedule 5, or articles of leather or of fur on the skin, all of which are excluded from part 4 of schedule 6 of TSUS, under which plaintiff's "preferred” claim is made. It is also agreed that exhibit 1, the "portable siphon pump", is capable of use as a siphon.

The only witness at the trial was Mr. Barry Wolf, who testified on behalf of plaintiff. He identified himself as an associate professor of mechanical engineering at New York University. Professor Wolf holds bachelor's, master's, and doctor's degrees in mechanical engineering. In addition to the thesis he wrote for his doctorate on the topic of propagation of stress waves in solid material, he has published a few papers in connection with his subsequent investigations in wave propagation.

Exhibit 1, representative of the portable siphon pumps in controversy, consists of a hollow cylinder, slightly tapered at both ends, measuring approximately 31/4 inches in length, and 134 inches in diameter at mid-section. Affixed to one end of the cylinder is a tapered nozzle, approximately 214 inches in overall length. At the other end of the hollow cylinder there is a nozzle approximately 34 of an inch in length which terminates in a piece of plastic hose 1/4 inch in diameter and about 52 feet in length. There is a small disc valve,

hinged to open in one direction, attached to the nozzles at both ends of the plastic cylinder.

Inasmuch as the cylindrical portion of exhibit 1 had been cut to disclose the disc valves, the court received in evidence as exhibit 1-E a sample of the merchandise in its uncut state, as imported.

From the testimony of Professor Wolf it appears that exhibit 1, representative of the portable siphon pumps, is a variation of the common piston pump. Four drawings prepared by the witness, designated as figures 1, 2, 3 and 4, were received in evidence as exhibits 1-A through 1–D. Figures 1 and 2 depict the operation of a normal piston pump. As the piston is depressed, the fluid in the chamber is compressed, the valve in the lower part of the chamber opens, and the fluid is discharged. As the piston is raised, the pressure in the chamber decreases, the lower valve closes, the valve in the upper part of the chamber opens, permitting fluid to refill the chamber, and the cycle is repeated. The portable siphon pumps in issue function in a similar way (exhibits 1-C and 1-D). In the absence of a piston in the articles at bar, hand pressure on the cylinder walls creates a similar increase or decrease in compression within the cylinder bringing about, with the aid of the lower and upper valves, the emptying and refilling of the cylinder area.

Although Professor Wolf had never used the pump in issue nor seen it used, he demonstrated its use, at the request of the court, in the following manner. He placed the end of the hose in a pitcher of water. With his other hand, he pressed in and out the cylinder or chamber attached to exhibit 1. By this operation, water from the pitcher was transferred to a cup resting on the judges' bench, which was at a higher level. When asked if there was a name given to the action thus performed, Professor Wolf replied: "Pumping." He also stated that the device would be recognized by a mechanical engineer as a "pump; in fact, a piston pump.'

Professor Wolf stated on cross-examination that exhibit 1 could be used as a siphon, within the common meaning of the term, but that it "is primarily a pump". He added that a hose by itself is a siphon but you do not have to use it as such. When tubing is utilized as a siphon it must be primed in some way so that gravitational force will start the fluid to flow downward. When exhibit 1 is used as a siphon, the bulb part could be used to prime the siphoning action. The valves would remain open throughout the siphoning process.

Exhibit 2, representing the automatic drain pumps in issue, was denominated by Professor Wolf as an ejector pump within the general category of pistonless pumps and was described as having a T shape. The cross part of the T is approximately 3% inches long and the vertical portion 14 inches. The inner rim of one end of the

crosspiece is threaded for connection to a high pressure water source such as a sink faucet. The outer rim of the leg is threaded for the attachment of a hose and the other end of the hose is placed in the water to be removed or drained. The merchandise represented by exhibit 2, as imported, was without a hose.

As the water flows from the high pressure water source past the leg to which the hose has been attached, suction is created in the leg and hose, causing water at the end of the hose to be withdrawn. Illustrative of the functioning of an automatic drain pump, there was received in evidence as exhibit 2-A a portion of a card upon which such articles are mounted for purposes of sale.

On being shown a book entitled Mechanical Engineers' Handbook (Fifth Edition) by Lionel S. Mark, Professor Wolf testified that it was considered to be the bible of mechanical engineering. On page 1832 the witness identified a diagram of a device labeled "multistage ejector" and stated it was similar to exhibit 2. The ejector referred to appears under a subchapter heading for "Pistonless Pumps". Pages 1829 through 1832 of the Handbook were received in evidence as exhibit 2-B.

The court will first consider the classification of the automatic drain pumps represented by plaintiff's exhibit 2. During the pendency of this case, the court, in an opinion by Judge Newman, decided a case involving a similar article. Although in that case, Hancock Gross, Inc. v. United States, 64 Cust. Ct. 97, C.D. 3965, decided February 12, 1970, the controversy was between item 654.20 which provides for articles of base metal, not specially provided for, of a type used for household, table, or kitchen use, and item 660.94 (successor item to 660.90 which is presently before the court) covering pumps for liquids, whether operated by hand or by any kind of power unit, the construction given to the provision for pumps in that case has a controlling effect on the question here presented.

As was pointed out in the Hancock Gross, Inc. case, and as indicated in the briefs of the parties herein, "pumps" as such were not eo nomine specified for import duty purposes until the advent of the Tariff Schedules of the United States. The court, in the Hancock Gross, Inc. case, considered in depth the background of the provision for pumps in the tariff schedules.

Defendant seeks to negate classification of the articles represented by exhibit 2 within the provision for pumps for liquids, operated by any kind of power unit, provided for in item 660.90 of the TSUS on the grounds that they cannot function by themselves as pumps, and that their means of functioning does not constitute them pumps operated by a power unit since, defendant contends, water is not a power unit. Defendant contends that the article is "less than a pump" since

418-836 071- 4

"it cannot function by itself as a pump of liquids", and that it is "simply an article of plumbing equipment designed to attach to a source of water." (Defendant's brief, p. 16). Defendant argues further that exhibit 2 is not a pump because it is not a machine, and asserts that "[f]or tariff purposes, a machine must have moving parts", and that the "automatic drain siphon pump" in issue has no moving parts. Although the article denominated "Drain or Fill" in the Hancock Gross, Inc. case was somewhat larger in size and more substantially constructed, the general design, purpose, and means of functioning appear to be identical to the automatic drain pumps (exhibit 2) presently at bar. In the Hancock Gross, Inc. case, the court described the merchandise therein as follows:

"The 'Drain or Fill' measures approximately 54 inches in length and consists basically of a converging nozzle. At the top of the nozzle, there is an inlet for water and a female-threaded connector which is designed to screw onto a male-threaded water faucet. Protruding from one side of the nozzle, immediately below the female-threaded connector, there is a hollow cylindrical appendage approximately 12 inches in length which serves as an inlet or outlet for liquid through a rubber hose.2 At the bottom of the nozzle there is an opening for the discharge of water coming from the faucet and the rubber hose. Also near the bottom of the nozzle there is a bell-shaped attachment containing a rubber stopper. By raising the bell-shaped attachment, the rubber stopper closes the bottom opening, so that water coming from the faucet will be diverted to the outlet at the appendage and will discharge through an attached rubber hose.

"The 'Drain or Fill' may be used to pump water in the following manner: A rubber hose is attached to the appendage, and the female-threaded connector is screwed onto a water faucet. The end of the attached hose is placed in the area or receptacle from which water is to be pumped (drained). When the water faucet is turned on, the jet of water will pass the opening where the appendage on exhibit 1 is located, resulting in a suction. The fluid in the area to be drained is drawn into the hose by suction and is discharged at the bottom opening. If the water faucet is turned off, no suction is produced, and the 'Drain or Fill' cannot pump water.

"When a receptacle is to be filled while the 'Drain or Fill' is on the faucet, the bell-shaped attachment is raised so that the rubber stopper closes the bottom outlet. Water from the faucet will then be diverted from coming out the bottom of the 'Drain or Fill' and instead will run out through the rubber hose. Thus, the bellshaped attachment permits the 'Drain or Fill' to remain on the faucet while filling a receptacle with the use of the hose. Under

* The "Drain or Fill" was imported without a rubber hose attached to the appendage. [Footnote in Hancock Gross, Inc., supra.]