CLA-2 RR:CR:GC 965754 DBS
Port Director
U.S. Customs Service
200 Granby St., Ste. 839
Norfolk, VA 23510
RE: CVS exhaust gas dilution system; Sampling equipment.
Dear Port Director:
This is in response to a memorandum dated July 9, 2002, from the Chief, Metals and Machinery Branch, National Commodity Specialist Division, New York, regarding the classification of the CVS exhaust gas dilution system. We understand that Pierburg Instruments Inc. has imported this article at your port.
FACTS:
The CVS exhaust gas dilution system is used with an exhaust gas measuring system designed to perform exhaust gas tests of gasoline and diesel engines to determine if they meet exhaust pollution standards. CVS system performs constant volume sampling during emission testing.
Constant volume sampling maintains a constant total flow rate of a vehicle exhaust plus dilution air. As exhaust flow increases the dilution air is
automatically decreased and the sampling source is representative of exhaust variations. The CVS system provides the source for all samples collected.
The unit consists of a control cabinet and CFV (critical flow venturi) dilution unit. The control cabinet contains a valve, pump, power unit, flow and filter unit, bag pressure monitor and PSE control. The CFV dilution unit includes a cyclone separator, venturi block, heat
exchanger/temperature regulator, and pressure and temperature measuring equipment.
The operation of the system is as follows: Exhaust from an automobile or truck engine is channeled through a dilution tunnel (a tube or pipe) where it is combined with filtered or ambient air in order to prevent condensation and chemical reactions from occurring in the gas. The gas then passes through the heat exchanger in the CFV dilution unit in order to stabilize the gas within a certain temperature range. Next, the gas passes through the venturis, which are orifices that restrict gas flow. At this point, the CVS system measures the temperature and pressure of the exhaust gas. These measurements, together with the calibration coefficient, which is the critical gas flow volume from the venturis, enable the system to determine the volume of the diluted gas.
Having ascertained the volume, a sample of the gas is pumped or blown into separate plastic sample bags. Once in the bags, the gas samples can undergo particulate content analysis, the equipment for which is not a part of the instant import. The measured volume and the data of the sample analysis are used to calculate the mass of each pollutant emitted. The CVS system controller monitors the system and continuously calculates gas volume, since the analysis of the gas cannot be performed without first knowing the volume of gas emitted by the engine during a certain period of time.
ISSUE:
What is the tariff classification of the instant article?
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 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.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances:
8479.89 Other:
Other:
8479.89.97 Other:
* * *
9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flowmeters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 90.14, 9015, 9028 or 9032; parts and accessories thereof:
9026.80 Other instruments and apparatus:
9026.80.20 Electrical
* * *
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); microtimes; parts and accessories thereof:
9027.10 Gas or smoke analysis apparatus:
9027.10.20 Electrical
Section XVI, Note 1(m), HTSUS, excludes articles of Chapter 90, HTSUS, from classification in Chapters 84 and 85, HTSUS. Therefore, we must first determine whether the instant system is classifiable in heading 9027. The ENs to heading 9027 state, in pertinent part, as follows:
(8) Gas or smoke analysis apparatus. These are used to analyse 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.
Some of these instruments or apparatus determine volumetrically the gases absorbed by appropriate chemical substances, or burnt….
Electrical gas and smoke apparatus measure content. As described in the ENs, some apparatus use volume to determine content. The instant system does not measure the content of the exhaust gas it tests. Rather, it prepares a diluted sample, measured for its volume, for another apparatus to volumetrically analyze the chemical content of the gas.
Though volume may be a physical property of gas, measuring volume at a specific point in order to perform chemical analysis is not the type of physical analysis contemplated by heading 9027, HTSUS. This system does not determine and measure content, as described in the EN. It prepares a gas sample for analysis. As such, it is not classifiable in heading 9027, HTSUS.
Nor is the system classifiable in heading 9026, HTSUS. Heading 9026, HTSUS, covers apparatus for measuring and checking the rate of flow in volume. Although the system does in part measure the flow rate, the apparatus is incorporated into the units of the system. The system dilutes gas and measures volume, but has the primary purpose of preparing a sample of gas for content analysis. Thus, heading 9026, HTSUS, does not cover the product.
We turn next to heading 8479, HTSUS, in which Customs has previously classified sampling machines. See HQ 087597, dated November 27, 1990 (classifying precipitation sampler and an air sampler in subheading 8479.89.90, HTSUS, and not in heading 9027, HTSUS because the machine prepared samples but performed no analysis); HQ 088242, dated November 27, 1990 (classifying a centrifugal air sampler in subheading 8479.89.90, HTSUS, and not in heading 9027, HTSUS, for the same reason); HQ 964001, dated February 12, 2001 (classifying an automated liquid sample processor machine in subheading 8479.89.97, HTSUS.).
The CVS exhaust gas dilution system is comprised of a control cabinet and a dilution unit. Each performs various functions which work together to maintain a certain volume and keep the exhaust above its dew point in order to prepare a sample for subsequent analysis. We find the purpose of the CVS exhaust gas dilution system is to prepare samples of exhaust gas. See HQ 087597, supra.
The ENs to heading 8479 state, in pertinent part:
This heading is restricted to machinery having individual functions, which:
(a) Is not excluded from this Chapter by the operation of any Section or Chapter Note.
and (b) Is not covered more specifically by a heading in any other Chapter of the Nomenclature.
and (c) Cannot be classified in any other particular heading of this Chapter since :
(i) No other heading covers it by reference to its method of functioning, description or type.
and (ii) No other heading covers it by reference to its use or to the industry in which it is employed.
or (iii) It could fall equally well into two (or more) other such headings (general purpose machines).
The machinery of this heading is distinguished from the parts of machinery, etc., that fall to be classified in accordance with the general provisions concerning parts, by the fact that it has individual functions.
For this purpose the following are to be regarded as having “ individual functions ” :
(A) Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.
Example : Air humidification and dehumidification are individual functions because they can be performed by appliances operating independently of any other machine or appliance.
A separately presented air dehumidifier, even if designed to be mounted on an ozone generator falls, therefore, to be classified in this heading as having an individual function.
The CVS exhaust gas dilution system is not excluded from classification in Chapter 84, HTSUS. It is not covered more specifically in any other chapter or heading by description or use. The preparation of samples is performed independently of any other machine. Therefore, the CVS exhaust gas dilution system constitutes machinery having individual functions classifiable in heading 8479, HTSUS.
HOLDING:
The CVS exhaust gas dilution system is classifiable in subheading
8479.89.97, 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: other: other: other.”
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division