CLA-2 OT:RR:CTF:TCM H262310 GA
Port Director
Cargo Office – Washington Dulles Airport
U.S. Customs and Border Protection
22685 Holiday Park Drive, Suite 15
Sterling, VA 20598
Attn: Maricela Guandique, Import Specialist
RE: Request for Internal Advice; tariff classification of NOx sensors
Dear Port Director:
This is in reference to your January 30, 2015 request for Internal Advice, forward of Continental Automotive Systems, Inc (“Continental”), dated January 21, 2015. At issue is the proper tariff classification of NOx sensors under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching this decision, we have considered submissions made by Continental in its request memo including the product photographs. Additionally, we have also taken into account information provided by Continental during a conference call on February 3, 2016, and supplemental submission dated, April 26, 2016.
FACTS:
This request for Internal Advice concerns the tariff classification of NOx sensors. Continental indicates that these sensors are mass produced and designed for use in consumer passenger vehicles and trucks. Continental states that the most common application for the NOx sensor is in a selective catalytic reduction (“SCR”) system which contains a vehicle’s exhaust gas before it is emitted in order to reduce pollutants. In an SCR system, the NOx sensors are used at the entrance and exit of the system to check the amount of nitric oxide in the exhaust gases.
The NOx sensor module consists of a sensor probe, signal conditioning electronics, and a mechanical housing protecting the electronics. The sensor probe operates by means of a ceramic sensor element. When the sensor element comes into contact with nitric oxide, an electrochemical reaction occurs which generates a voltage in proportion to the concentration of nitric oxide present. The low level signal coming from the sensor probe is not useable as is, and requires further amplification, compensation, and signal conditioning. These operations are performed by the sensor module’s electronics, which convert the low signal to high level digital signal. This signal represents a rough value of nitric oxide present in parts per million (“ppm”) and it is sent to the Engine Control Unit (“ECU”). The ECU then uses that input, along with signals from pressure sensors and other information, to generate a more accurate ppm value of nitric oxide in the exhaust and uses that information to determine the amount of ammonia to be injected into the system.
The NOx sensor at the entrance of the SCR system checks the value of nitric oxide entering the system. Based on the concentration of nitric oxide detected along with the signals from pressure sensors and other information, the ECU calculates the amount of ammonia that must be injected, in the form of a urea solution, into the exhaust gas as it enters the SCR catalyst. The ECU will also compensate for cross sensitivity caused by the presence of other gases. Within the SCR system, the ammonia reacts with the nitric oxide molecules to reduce its concentration in the exhaust stream by creating water and carbon dioxide. The NOx sensor at the outlet of the SCR system checks to make sure that the nitric oxide concentration has been reduced and that the system is operating properly.
ISSUE:
Whether the NOx sensors are classified in heading 9027, HTSUS, as instruments and apparatus for analysis; or heading 9026, HTSUS, as instruments and apparatus for measuring.
LAW AND ANALYSIS
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of gods 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 requires, the remaining GRIs may then be applied.
The following HTSUS provisions are at issue:
9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof
9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof
* * * * *
In understanding the language of 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 Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 90.27 details various types of gas detecting apparatus and provides, in pertinent part:
This heading includes:
(8) Gas or smoke analysis apparatus. These are used to analyze combustible gases or combustion by-products (burnt gases) in coke ovens, gas producers, blast furnaces, etc., in particular, for determining their content of carbon dioxide, carbon monoxide, oxygen, hydrogen, nitrogen or hydrocarbons. Electrical gas or smoke analysis apparatus are mainly for determining and measuring the content of the following gases: carbon dioxide, carbon monoxide and hydrogen, oxygen, hydrogen, sulphur dioxide, ammonia.
EN 90.26 states, in pertinent part, as follows:
Apart from instruments or apparatus more specifically covered by other headings of the Nomenclature, such as:
Pressure-reducing valves and thermostatically controlled valves (heading 84.81)
Anemometers (wind gauges) and hydrological level gauges (heading 90.15)
Thermometers, pyrometers, barometers, hygrometers and psychrometers (heading 90.25)
Instruments and apparatus for physical or chemical analysis, etc. (90.27),
this heading covers instruments and apparatus for measuring or checking the flow, level, pressure, kinetic energy or other process variables of liquids or gases.
As initial matter, Continental notes that it is currently importing the instant NOx sensors under heading 9027, HTSUS, based on guidance provided by New York Ruling Letter (NY) J88011, dated September 11, 2003, wherein CBP stated, in relevant part:
From the information supplied, the ppm of that gas could be accurately displayed via an appropriately calibrated galvanometer attached to the device’s output. They are not switching-type items which only send signal when one level is reached.
Continental contends that CBP did not explain in NY J88011 why heading 9027, HTSUS, was selected over any other heading (including heading 9026, HTSUS, which it perceives to be the appropriate heading in this instance) and further argues in the instant Internal Advice request that the NOx sensors at issue should not be considered to be “gas or smoke analysis apparatus” of heading 9027, HTSUS, because the operation performed by the NOx sensors is not similar to that of the examples listed in EN 90.27, which it characterizes as highly sensitive instruments found only in laboratory and industrial settings. Continental contends that the sensor can only indicate the presence of nitrogen oxides, and it does not provide any further information on the overall exhaust composition.
With respect to the fact that the subject NOx sensors are used in motor vehicle SCR systems, we note that no such limiting language exists in the wording of the heading 9027, HTSUS, which would restrict the use of gas analysis apparatus to only laboratory or industrial settings. Additionally, neither the legal text of heading 9027, HTSUS, nor that of EN 90.27 sets parameters regarding the sensitivity levels of gas analysis apparatus falling under the scope of heading 9027, HTSUS.
The Court of International Trade (CIT) has stated that the phrase “instruments and apparatus for physical and chemical analysis” describes articles that are chiefly used to perform physical or chemical determination of the quantity, quantities, or composition of a substance. Pharmacia Fine Chemicals, Inc. v. United States, 9 CIT 438, 441 (1985). In Burrows Equipment Company v. U.S., C.D. 3848 (1969), it was stated that: [a]n instrument or apparatus is included within the common meaning of the term “chemical analysis” if it determines one or more ingredients of a substance either as to kind or amount; it is performs a detailed examination of a complex chemical substance for the purpose of enabling one to understand its nature or to determine an essential feature; or if it determines what elements are present in a chemical substance. See HQ 955455, dated January 19, 1994.
Heading 9027, HTSUS, as stated above in the heading text and EN 90.27 (8), covers gas analysis apparatus. The NOx sensors are used at the entrance and exit of the system to detect the amount of nitric oxide in the exhaust gases. The process by which the NOx sensor detect the concentration (the amount/value) of nitric oxide in a vehicle’s exhaust gas in unit measurement of parts per million (ppm) constitutes analysis. Based on the concentration of nitric oxide detected along with the signals from pressure sensors and other information, the Engine Control Unit (“ECU”) generates a more accurate parts per million (“ppm”) value of nitric oxide in the exhaust and calculates the amount of ammonia that must be injected, in the form of a urea solution, into the exhaust gas as it enters the SCR catalyst.
Heading 9026, HTSUS, provides for “Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof.” In HQ 088025, dated January 17, 1991, CBP stated that:
[t]the phrase “measuring or checking” is not defined by the [HTSUS]. However, the Court of Customs and Patent Appeals (CCPA), the forerunner of the Court of Appeals of the Federal Circuit, has referred to Webster’s Third New International Dictionary to ascertain the common meaning of “measuring or checking.” U.S. v. Corning Glass Works, 586 F.2d 822, 852 (1978). The term “measure” is described as “[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount . . . measure the dimensions of: take the measurement of . . . to compute the size of (an area, object) from dimensional measurements.” Webster’s Third New International Dictionary, 140 (1986).
We find that the NOx sensors are not prima facie classifiable in heading 9026, HTSUS, because the sensors are not for measuring or checking the flow, level, pressure or other variables of liquid or gases as explained in EN 90.26. Likewise, EN 90.26 indicates that the heading covers products not “covered by other headings in the Nomenclature, such as… [i]nstruments and apparatus for physical or chemical analysis, etc. (90.27)”. The function of the subject NOx sensors is to detect nitric oxide in the vehicle exhaust, calculate its concentration as expressed as ppm, and generate a corresponding signal to the vehicle’s ECU.
In addition to NY J88011, supra, CBP has previously classified gas detectors similar to the NOx sensor at issue. In Headquarters Ruling Letter (HQ) 967082, dated June 4, 2004, CBP determined, in part, that I.S. Plant Rat, because of its ability to monitor gas levels was an analytical device of heading 9027, HTSUS. Similarly, in HQ 967078, also dated June 4, 2004, the merchandise at issue all contained a sensor designed to measure the parts per million of a gas in general area, and electronics that determine when that gas level goes beyond a designated range. CBP classified the merchandise under heading 9027, HTSUS. See also HQ 967079, dated July 1, 2004 and HQ 967080, dated June 4, 2004.
Consequently, we find that the subject NOx sensors are properly classified in heading 9027, HTSUS, rather than in heading 9026, HTSUS.
HOLDING:
By application of GRIs 1 and 6, Continental’s NOx sensors are classified in heading 9027, HTSUS, specifically, they are classifiable in subheading 9027.10.20, HTSUS, which provides for “Instruments and apparatus for physical and chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension, or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof: Gas or smoke analysis apparatus: Electrical.” The column one, general rate of duty for subheading 9027.10.20, HTSUS, is 1.7% ad valorem.
You are to mail this decision to counsel for the internal advice requester no later than sixty days from the date of this decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public, on the CBP Home Page at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division