CLA-2 OT:RR:CTF:TCM H015618 KSH
Mr. M. Jason Cunnigham, Esq.
Sonnenberg & Anderson
300 S. Wacker Drive
Chicago, IL 60606
RE: Revocation of NY N013892; Diesel Particulate Filter. Dear Mr. Cunningham:
This letter is in response to your request of July 26, 2007, for reconsideration of New York Ruling Letter (NY) N013892, dated July 20, 2007, as it pertains to the classification of Diesel Particulate Filter (DPF) under the Harmonized Tariff Schedule of the United States (HTSUS). In NY N013892, the DPF was classified in subheading 6909.19.5095, HTSUS, which provides for “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods: Ceramic wares for laboratory, chemical or other technical uses: Other, Other, Other.” Since the issuance of that ruling you have submitted additional information which evidences that the hardness of the DPF on the Mohs scale is nine. On the revised Mohs scale it is thirteen. Accordingly, we have reviewed NY N013892 and found it to be in error. Therefore, this ruling revokes NY N013892. In reaching this decision, additional consideration was given to the meeting held on October 29, 2007.
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 January 22, 2009 in Volume 43, Number 5, of the CUSTOMS BULLETIN. One comment opposing the proposed action was received in response to the notice.
FACTS: The DPF is a catalytic converter ceramic substrate. The DPF is part of an exhaust system used to reduce diesel exhaust emissions through a filtering process. Upon importation, the DPF does not contain a catalyst coating. The DPF filters diesel particles through a series of ceramic honeycomb channels. Gas passes through the porous material where the particulates are trapped and accumulate on the channel walls. The DPF is designed to fit into and is dedicated for use in a particular model of diesel automobile.
The DPF consists of 85-90% silicon carbide; 5-6% alumina fibres; 5-6% mullite and; 2-4% silica. The hardness of the DPF on the Mohs scale is nine. On the revised Mohs scale it is thirteen.
A Customs and Border Protection (CBP) Laboratory Report (NY20081475), dated October 20, 2008, indicates that the sample submitted consists of fifteen long honeycomb channel pieces cemented together and sealed on the outside surface with a white material. The gray channel material and white cement material are principally composed of silicon carbide and is not principally in the form of fibers. It is resistant to refractory temperatures (1500( Centigrade).
ISSUE:
Whether the DPF is classified in subheading 6909.19.5095, HTSUS, which provides for other ceramic wares for laboratory, chemical or other technical uses, or subheading 6909.12.0000, HTSUS, which provides for ceramic wares for laboratory, chemical or other technical uses having a hardness equivalent to 9 or more on the Mohs scale, or heading 8421, HTSUS, which provides for filtering or purifying machinery and apparatus for liquids or gases, or heading 8708, HTSUS, which provides for parts and accessories of motor vehicles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied.
Heading 8421, HTSUS, which provides for “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases.”
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Explanatory Note 84.21(II)(B)(4) states:
(B) Filtering or purifying machinery, etc., for gases.
These gas filters and purifiers are used to separate solid or liquid particles from gases, either to recover products of value (e.g., coal dust, metallic particles, etc., recovered from furnace flue gases), or to eliminate harmful materials (e.g., dust extraction, removal of tar, etc., from gases or smoke fumes, removal of oil from steam engine vapours).
They include:
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(4) Other chemical filters and purifiers for air or other gases (including catalytic converters which change carbon monoxide in the exhaust gases of motor vehicles).
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Chapter 84, note 1(b), HTSUS, states: 1. This Chapter does not cover: (b) Machinery or appliances (for example, pumps) of ceramic material and
ceramic parts of machinery or appliances of any material (Chapter 69);
In part, General Explanatory Note (A) to chapter 84, HTSUS, states in
relevant part that: Since machinery or appliances (for example, pumps) of ceramic material
and ceramic parts of machinery or appliances of any material (Chapter 69), laboratory glassware (heading 70.17) and machinery and appliances and parts thereof, of glass (heading 70.19 or 70.20) are excluded from this Chapter, it follows that even if a machine or mechanical appliance is covered, because of its description or nature, by a heading of this Chapter it is not to be classified therein if it has the character of an article of ceramic materials or of glass.
This applies, for example, to articles of ceramic material or of glass, incorporating components of minor importance of other materials, such as stoppers, joints, taps, etc., clamping or tightening bands or collars or other fixing or supporting devices (stands, tripods, etc.).
On the other hand, the following are, as a rule, to be taken to have lost the character of ceramic articles, laboratory glassware, or machinery or appliances and parts thereof, of ceramic material or of glass:
Combinations of ceramic or glass components with a high proportion of components of other materials (e.g., of metal); also articles consisting of a high proportion of ceramic or glass components incorporated or permanently mounted in frames, cases or the like, of other materials.
The EN to heading 6909, HTSUS, reads in relevant part:
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The heading covers in particular:
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(2) Ceramic wares for other technical uses, such as pumps, valves ; retorts, vats, chemical baths and other static containers with single or double walls (e.g., for electroplating, acid storage); taps for acids; coils, fractionating or distillation coils and columns, Raschig rings for petroleum fractionating apparatus; grinding apparatus and balls, etc., for grinding mills; thread guides for textile machinery and dies for extruding man-made textiles; plates, sticks, tips and the like, for tools.
Subheading EN to subheading 6909.12 provides: This subheading covers high-performance ceramic articles. These articles are composed of a crystalline ceramic matrix (e.g. of alumina, silicon carbide, zirconia, or nitrides of silicon, boron or aluminium, or of combinations thereof): whiskers or fibres of reinforcing material (e.g. of metal or graphite) may also be dispersed in the matrix to form a composite ceramic material. These articles are characterized by a matrix which has a very low porosity and in which the grain size is very small; by high resistance to wear, corrosion, fatigue and thermal shock; by high-temperature strength; and by strength-to-weight ratios comparable to or better than those of steel.
They are often used in place of steel or other metal parts in mechanical applications requiring close dimensional tolerances (e.g. engine turbocharger rotors, rolling contact bearings and machine tools). The Mohs scale mentioned in this subheading rates a material by its ability to scratch the surface of the material below it on the scale. Materials are rated from 1 (for talc) to 10 (for diamond). Most of the high-performance ceramic materials fall near the top of the scale. Silicon carbide and aluminium oxide, both of which are used in high-performance ceramics, fall at 9 or above on the Mohs scale. To distinguish among harder materials, the Mohs scale is sometimes expanded, with talc as 1 and diamond as 15. On the expanded Mohs scale, fused alumina has a hardness equivalent to 12, and silicon carbide has a hardness equivalent to 13.
The commenter argues that CBP’s reliance on Note 1(b) to Chapter 84, HTSUS, is misplaced because the note applies to “machinery and appliances” and not to “apparatus.” Heading 8421, HTSUS, provides for both machinery and apparatus. There is no indication that the ceramic substrates are considered “appliances” and not “machinery.” Moreover, Note 5 to Section XVI, HTSUS, states that, “For the purposes of these notes, the expression "machine" means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85.” The terms of the notes to Section XVI, HTSUS, and the terms of chapter 84,HTSUS, must be considered in pari material. As such, CBP is unwilling to parse the terms of the heading to construe the provision as the commenter has suggested.
The substrates are made of ceramic material. In accordance with Note
1(b) to chapter 84, HTSUS, the ceramic substrates are precluded from classification under heading 8421, HTSUS, because they have the character of ceramic articles. Consequently, the substrates are not classifiable under subheading 8421.99.00, HTSUS.
The substrates fall within the purview of high-performance ceramics as they are a composite ceramic composed in part of silicon carbide, are machined to exacting dimensional tolerances for use in the automotive industry, and have a hardness equivalent to more than 9 on the Mohs scale. As such, the substrates are within the purview of the subheading EN description. As such, the DPF is classified in subheading 6909.12, HTSUS.
Heading 8708, HTSUS, provides for “Parts and accessories of the motor vehicles of headings 8701 to 8705.” You argue that the DPF should be classified in heading 8708, HTSUS, because it plays a crucial role to the diesel automobile’s function by reducing emissions in accordance with the legal requirements for its operation in the United States.
Note 2 to Section XVII, excludes various items from classification as parts and accessories of motor vehicles. It reads in part:
The expressions “parts” and “parts and accessories” do not apply to the following articles, whether or not they are identifiable as for the goods of this section:
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(e) Machines or apparatus of headings 84.01 to 84.79, or parts thereof; articles of heading 84.81 or 84.82 or, provided they constitute integral parts of engines or motors, articles of heading 84.83;
The criteria set forth in the General Explanatory Notes to Section XVII regarding parts and accessories provide the following:
It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions:
(a) They must not be excluded by the terms of Note 2 to this Section (see paragraph (A) below).
and (b) They must be suitable for use solely or principally with the articles of Chapters 86 to 88 (see paragraph (B) below).
and (c) They must not be more specifically included elsewhere in the Nomenclature (see paragraph (C) below).
The ceramic substrates are not parts excluded by section XVII, note 2, HTSUS, because they are not a machine or mechanical appliance nor a part of headings 8401 to 8479, HTSUS. As previously noted, in accordance with Note 1(b) to Chapter 84, HTSUS, the ceramic substrates are precluded from classification under chapter 84, HTSUS.
The ceramic substrates are suitable for use solely or principally with the motor vehicles of chapter 87, HTSUS. However, Additional U.S. Rule of Interpretation (AUSR) 1(c) provides:
A provision for parts of an article covers products solely or principally used as a part of such articles, but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory[.]
The commenter also argues that insofar as the substrates are suitable for use solely with a motor vehicle and are not excluded by Section XVII Notes 1 through 3, the substrates must be classified in heading 8708, HTSUS. The commenter further argues that heading 6909, HTSUS, does not provide the level of specificity necessary to preclude classification in heading 8708, HTSUS.
At importation, the substrates at issue are clearly identifiable as ceramic articles. Heading 6909, HTSUS, which provides for “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture ; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods” is more specific than heading 8708, HTSUS, which provides for “Parts and accessories of the motor vehicles of headings 8701 to 8705.” Heading 6909, HTSUS, most narrowly and definitely describes the ceramic substrate and has the requirements that are the most difficult to satisfy. See Additional U.S. Rule of Interpretation 1(c). Numerous court cases have held that an eo nomine designation will prevail over a provision of general description. See Sharp Microelectronics Technology, Inc., v. United States, 122 F.3d 1446 (Sept. 2, 1997). It logically follows, therefore, that a provision which names a good, heading 6909, HTSUS, in this case, must prevail over a heading that provides for parts, but which does not identify any particular article. Accordingly, the ceramic substrates are classified in heading 6909, HTSUS.
HOLDING:
Pursuant to GRI 1 and Additional U.S. Rule of Interpretation 1(c), the DPF is classified in heading 6909, HTSUS. It is specifically provided for in subheading 6909.12.0000, HTSUS, which provides for: “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods: Ceramic wares for laboratory, chemical or other technical uses: Articles having a hardness equivalent to 9 or more on the Mohs scale.” The column one, general rate of duty is 4% ad valorem.
EFFECT ON OTHER RULINGS:
NY N013892, dated July 20, 2007, is hereby revoked.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division