CLA-2 OT:RR:CTF:TCM H118895 EGJ
Mr. Keith Landry
Kuehne & Nagel
235 Southfield Parkway
Forest Park, GA 30297
RE: Revocation of NY K88616 and Modification of NY J84466; Classification of a Thermal Oxidizer
Dear Mr. Landry:
This is in reference to New York Ruling Letter (NY) K88616, dated October 18, 2004, and NY J84466, dated May 23, 2003, concerning the tariff classification of thermal oxidizers under the Harmonized Tariff Schedule of the United States (HTSUS). In those rulings, U.S. Customs and Border Protection (CBP) classified the subject articles in heading 8417, HTSUS, which provides for industrial or laboratory furnaces and ovens. We have reviewed NY K88616 and find it to be in error. For the reasons set forth below, we hereby revoke NY K88616 and modify NY J84466.
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 revocation was published on November 16, 2011, in the Customs Bulletin, Volume 45, No. 47. CBP received no comments in response to this notice.
FACTS:
In NY K88616, CBP described the product as follows:
The Clean Enclosed Burner (hereinafter CEB) will be used chiefly for burning waste gases and hydrocarbon fumes. This is a smokeless system and has almost no heat radiation and no outwardly visible flame. It is said to be a new alternative to conventional flare systems currently in use at refineries and industrial processing facilities. The system exceeds a combustion efficiency of 99.99%. It is a modular system so that additional units can be added side by side at any time. The units are generally delivered to the desired location on a flatbed truck.
The product literature states that CEB employs a premixed surface combustion system. Surface combustion is a burning technique in which premixed gas and air burns on a permeable medium. The mixture will be ignited above the burner surface. Combustion will take place in the combustion chamber by providing short blue flames. The burner is made from woven metal fibers. The fiber mat consists of several layers of metal fibers made of a special alloy capable of withstanding temperatures up to 1300 degrees C. Heat is released in convection form. The flame is shielded and directed upward by insulated walls. A typical CEB system consists of the following parts: steel structure, stainless steel diffuser, stainless steel pre-mix chamber, burner deck equipped with permeable medium, gas piping, centrifugal fan, air supply control, flue gas temperature monitoring, pilot system with automatic electric ignition, valves, flame arrestor, emission measuring ports and a stack 6’ high.
In NY J84466, CBP describes the product at issue as follows:
The Guardian active oxidation scrubbers are point-of-use emission abatement devices that thermally oxidize and decompose process gases. There are two main processes involved: first, waste gases are forced through a wall of flame as the gases are drawn into a combustion area; second, clean air is pumped through the machine’s oxidizer which provides oxygen for combustion and dynamically positions the flame and cools the exhaust gas stream. You indicate that the Guardian cannot properly operate if both these functions do not exist. You also state that the Guardian possesses a control which determines the amount of clean airflow that is introduced into the process.
Both devices are thermal oxidizers. Thermal oxidizers are machines which treat waste gases to destroy pollutants known as VOCs (volatile organic compounds). Thermal oxidation is a combustion process because the compounds are burned through exposure to high temperatures. To being the thermal oxidation process, a stream of air laden with VOCs enters the thermal oxidizer’s premix chamber. In the premix chamber, oxygen is added and mixed into the air stream. The VOC laden air stream mixed with oxygen is then pushed through a mesh of metal fibers.
This mesh of metal fibers is a permeable medium. After the air stream flows through the mesh, it is ignited by an electrical spark. The air stream burns just above the mesh. The mesh is designed to withstand temperatures of up to 1100 degrees Celsius. The resulting flame is shielded and directed upward by insulated walls.
As a result of the heat, a chemical reaction occurs whereby the VOCs react with the oxygen and are converted into water and carbon dioxide. The resulting output is 99.99% free from VOCs. On its website, Bekaert advertises the CEB for applications such as waste water treatment, landfill biogas, oil drilling and gas drilling.
ISSUE:
Are the thermal oxidizers classified under heading 8417, HTSUS, as furnaces or under heading 8421, HTSUS, as purifiers?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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’s 2 through 6 may then be applied in order.
The HTSUS provisions at issue are as follows:
8417 Industrial or laboratory furnaces and ovens, including incinerators, nonelectric, and parts thereof …
* * *
8421 Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof …
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Section XVI, Note 3, which covers Chapter 84, HTSUS, states the following:
Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN (VI) to Section XVI states, in pertinent part, that:
Where it is not possible to determine the principal function, and where, as provided in Note 3 to the Section, the context does not otherwise require, it is necessary to apply General Interpretative Rule 3 (c); such is the case, for example, in respect of multi function machines potentially classifiable in several of the headings 84.25 to 84.30, in several of the headings 84.58 to 84.63 or in several of the headings 84.69 to 84.72.
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EN 84.17 states, in pertinent part, that:
This heading covers non-electrical industrial or laboratory furnaces and ovens, designed for the production of heat in chambers at high or fairly high temperatures by the combustion of fuel (either directly in the chamber or in separate combustion chambers) …
The heading includes:
…
(13) Incinerators and similar apparatus specially designed for the burning of waste, etc. …
* * *
EN 84.21(II) states in pertinent part, that:
(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 vapors).
* * *
The terms “furnace” and “purifier” are not defined in the HTSUS. When, as in this case, the tariff terms are not defined in the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F. 2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576.
In Webster’s New World Dictionary, the term “furnace” is defined as “1. an enclosed chamber or structure in which heat is produced, as by burning fuel, for warming a building, reducing ores and metals, etc. 2. any extremely hot place.” Further, EN 84.17 states that the heading covers machines “designed for the production of heat in chambers at high or fairly high temperatures.” EN 84.17(13) states that the heading covers “incinerators and similar apparatus specially designed for the burning of waste.” The merchandise uses a heated chamber to burn up waste gases. Thus, it could be classified as a furnace of heading 8417, HTSUS.
In Noss Co. v. United States, 588 F. Supp. 1408, 1412 (Ct. Int’l Trade 1984), the court provided several dictionary definitions of the term “purify.” One of the definitions was “to remove unwanted constituents from a substance.” Id. citing The McGraw-Hill Dictionary of Scientific and Technical Terms (2d ed. 1978). Although the court applied this definition to a tariff term in the Tariff Schedule of the United States (predecessor to the HTSUS), the Court of Appeals for the Federal Circuit (CAFC) has applied the same definition of the term “purify” under the HTSUS. Franklin v. United States, 289 F.3d 753, 758 (Fed. Cir. 2002) (Franklin) (applied this definition to coral sand packets which kill bacteria and neutralize chlorine in glasses of drinking water). In addition, EN 84.21(II)(B) states that the heading covers machines which “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 vapors).”
Now we must apply these definitions of “purify” to the instant merchandise. The merchandise satisfies the Franklin definition of a purifier because it removes unwanted constituents (VOCs) from a substance (the air stream). The merchandise also satisfies the definition of a purifier in the ENs because it eliminates harmful materials (VOCs) through combustion. Therefore, the merchandise could also be classified as a purifier.
The instant machine, through the method of combustion, performs two functions: incineration of the VOCs, and purification of the gas input. Thus, the thermal oxidizers at issue are “designed for the purpose of performing two or more complementary or alternative functions” (Section XVI, Note 3), and are therefore multi-function machines. Hence, we must identify the principal function in order to determine how the merchandise is classified. Here, the functions are intertwined. The incinerator simultaneously heats and purifies. Heating the VOC laden air stream purifies the air stream and removes the VOCs. While the heating is the principal action, purification is the desired result. Companies order these thermal oxidizers for their ability to purify waste gas. Since the two functions are so tightly linked, we cannot identify one principal function for the machine.
The ENs to section XVI, paragraph VI pertaining to multi-function machines and composite machines, instruct that where it is not possible to determine the principal function, as provided in note 3, it is necessary to apply GRI 3(c). GRI 3(c) provides that "[w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration."
Heading 8421, HTSUS, appears later in numerical order. Hence, the merchandise shall be classified as a purifier under heading 8421, HTSUS. This result is consistent with that of NY R05112, classifying a thermal oxidizer in heading 8421, HTSUS.
HOLDING:
By application of GRI 1, Section note 3 to Section XVI and GRI 3(c), the merchandise is classified under heading 8421, HTSUS. Specifically, it is classified under subheading 8421.39.80, HTSUS, which provides, in pertinent part, for “[F]iltering or purifying machinery and apparatus, for liquids or gases, parts thereof: Filtering or purifying machinery and apparatus for gases: Other: Other …” The column one, general rate of duty is free.
Duty rates are provided for your convenience and 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.
EFFECT ON OTHER RULINGS:
NY K88616, dated October 18, 2004, is hereby revoked.
NY J84466, dated May 23, 2003, is hereby modified with regard to the Guardian Gas Protective System (Models GS-4 and GS-8).
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