OT:RR:CTF:EMAIN H274679 SK
Port Director
U.S. Customs and Border Protection
Port of Norfolk-Newport News
101 E. Main Street
Norfolk, VA 23510
Attn: Mark Laria, Port Director
RE: Photo-accoustic spectrometer; Power transformer gas measurement apparatus; Application for Further Review of Protest Number 1401-15-100041.
Dear Port Director:
This is in response to an Application for Further Review (AFR) of Protest No. 1401-15-100041 (“lead” protest), timely filed on April 6, 2015, by General Electric Kelman (Protestant). The AFR concerns U.S. Customs and Border Protection’s (CBP) classification under the Harmonized Tariff Schedule of the United States (HTSUS) of apparatus used to detect and measure gas in electrical power transformer oil. This ruling also addresses Protest No. 1401-15-100128, timely filed on October 7, 2015, which concerns entries of substantially similar merchandise and is suspended pending determination of Protest No. 1401-15-100041.
The five entries associated with the lead protest the subject of this AFR were processed at the Port of Norfolk-Newport News (the entries were made at the ports of Charleston, West Virginia and Richmond-Petersburg, Virginia) between November 26, 2013 and March 20, 2014, and liquidated between October 10, 2014, and January 30, 2015, under subheading 9027.10, HTSUS. Substantially similar merchandise, also imported by the Protestant, was accorded inconsistent treatment by CBP at the Port of Milwaukee in Protest No. 3701-15-100004, decided May 28, 2015, and classified under subheading 9027.30, HTSUS.
Protestant submitted a request for confidential treatment of “drawings and related materials” concerning the subject merchandise pursuant to § 177.2(b)(7) of title 19 of the Code of Federal Regulations (19 CFR § 177.2(b)(7)). In a subsequent email transmission to CBP dated January 30, 2019, the Protestant withdrew its original request for confidentiality.
FACTS:
The subject merchandise is identified in the relevant entries by the names “Transfix 1.6” and “MINITRANS” (additional styles/models have also been entered by the Protestant under the names “MULTITRANS” and “TRANSFIX PLUS”) and is described as a “gas analyzer” for use with power transformers. The Protestant also refers to the subject merchandise as a “photo-acoustic spectrometer” and a “dissolved gas analyzer (DGA).”
The monitoring and measurement of gases is a diagnostic tool used to assess the proper functioning of power transformers. When a power transformer is stressed (e.g. operating under elevated temperatures associated with high load and/or fault conditions), the oil in the transformer breaks down to form a range of by-products and simple gases that correlate to specific functions. The gases normally dissolve into the oil immediately following their creation and remain there indefinitely.
Different methods exist for detecting the presence and quantity of transformer gases. The articles at issue use photo-acoustic spectrometry to determine the presence and amount of certain gases (i.e., hydrogen, carbon dioxide, carbon monoxide, ethylene, ethane, methane, and acetylene), as described below:
The apparatus connects to an electrical transformer via short feed pipes that draw a prescribed quantity of sample oil from the transformer and store it in an internal chamber (manifold).
The gas in the manifold is aerated and released into a measurement chamber.
Infra-red light that uses a spectrum of wavelengths is directed at a spinning wheel with holes that serves to block or activate the light at a controlled frequency. The light passes through up to eight different optical filters – each one designed to allow only light of a specific wavelength. The use of individual optical filters allows a measurement of the concentration of a specific gas to be obtained that corresponds to that optical filter.
Gas molecules absorb the infra-red light of a specific wavelength, become excited, and remain in this state until the light is turned off. The molecules release their energy primarily as heat. In a closed chamber, this causes a slight pressure increase or a sound wave. This process is repeated at a constant frequency.
The magnitude of the sound is measured and is directly proportional to the concentration of gas present.
In addition to the use of photo-accoustic spectrometry to measure gases, the subject articles also perform a relative humidity measurement that measures water and oxygen levels via a sensor probe that is in direct contact with oil collected in the manifold. The subject articles also perform auto-sampling functions and return sampled oil to the transformer. In response to an August 26, 2014 CBP Form 28 request for additional information, the Protestant submitted documentation stating that the subject articles’ “primary purpose is monitoring gas in transformer oil. [M]oisture measurement is a secondary function.” (Exhibit D, paragraph 2)
ISSUE:
Whether the subject merchandise is classified in subheading 9027.10, HTSUS, as electrical gas or smoke analysis apparatus or in subheading 9027.30, HTSUS, as a spectrometer.
LAW AND ANALYSIS:
This matter is protestable under 19 U.S.C. 1514(a)(2) as a decision on classification. The protest was timely filed on April 6, 2015, within 180 days of liquidation, pursuant to 19 U.S.C. 1514(c)(3). Further Review of Protest No. 1401-15-100041 is properly accorded pursuant to 19 CFR § 174.24(a), as the Protestant has alleged that the decision against which the protest was filed is inconsistent with a CBP decision with respect to substantially similar merchandise. The AFR was forwarded for our consideration.
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will 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 2 through 6 will then be applied in order.
GRI 6 provides that classification of goods at the subheading level will be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the preceding GRIs on the understanding that only subheadings at the same level are comparable.
The HTSUS provisions under consideration are as follows:
90.27 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.
9027.10 Gas or smoke analysis apparatus
9027.30 Spectrometers, spectrophotometers and spectrographs using optical radiations (UV, visible, IR)
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System 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 the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 90.27 provides, in pertinent part:
* * *
(5) Spectrometers. These instruments are used to measure the wave lengths of emission and absorption spectra. They consist essentially of an adjustable slit collimator (through which the beam of light to be analysed passes), one or more adjustable prisms, a telescope and a prism table. Some spectrometers (particularly those used for infra red or ultra violet rays) are fitted with prisms or with diffraction gratings.
This group includes: spectroscopes for the observation of spectra; spectrographs for recording the spectrum on a photographic plate or film (spectrograms); monochromators, instruments for isolating a particular line in a line spectrum or for isolating certain parts of a continuous spectrum.
* * *
(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.
* * *
Other models work on the basis of density, or by fractional condensation and distillation (cracking), or on the following principles:
* * *
Selective absorption of ultra violet, visible, infra red or microwave radiations by the gas.
* * *
* * * * *
As heading 9027, HTSUS, provides for, inter alia, “[I]nstruments and apparatus for physical or chemical analysis (for example, … spectrometers, gas or smoke analysis apparatus)”, the subject merchandise is described by the heading text. The determinative issue is at the six-digit level of heading 9027, HTSUS, and whether the subject apparatus is classified under subheading 9027.10, HTSUS, as a gas analysis apparatus, or under subheading 9027.30, HTSUS, as a spectrometer.
As the subject articles detect and measure gases, but do not perform any type of analysis, they are not described by subheading 9027.10, HTSUS, which provides for gas or smoke analysis apparatus.
The subject articles primarily function by using infra-red spectrometry to measure gases. As such, they are prima facie classified in subheading 9027.30, HTSUS, which provides for, in pertinent part, spectrometers using infra-red optical radiations.
Although the subject articles also measure humidity levels (oxygen and water), and auto-sample and return oil to the transformer, these functions are ancillary to the article’s primary function of measuring transformer oil gases via spectrometry. As noted supra, the Protestant submits that the primary purpose of the subject articles is to monitor gas in transformer oil and moisture measurement is a secondary function. See Protestant’s response to CBP Form 28 (Exhibit D, paragraph 2).
Even assuming, arguendo, that the subject article were considered prima facie classified in subheading 9027.10, HTSUS, in that it determines the content of certain gases by means of the selective absorption of infra red radiations, as described by EN 90.27(8)(i), the subject article is nevertheless more specifically described by subheading 9027.30, HSTUS, which provides for, inter alia, infra-red spectrometers. See EN 90.27(5), which describes “spectrometers” as used to measure the wave lengths of emission and absorption spectra and specifies that they may be used with infra-red light.
In a scenario where both subheadings 9027.10 and 9027.30, HTSUS, were deemed to describe the subject merchandise, classification would be in accordance with a relative specificity analysis pursuant to GRIs 3(a) and 6. GRI 3(a) provides that, when by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. …
In Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1380 (Fed. Cir. 1999) (citing Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998)), the Court of Appeals for the Federal Circuit stated that under the GRI 3(a) rule of specificity, "the court w[ill] look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty." Merchandise is classifiable under the tariff provision having requirements/terms which are more difficult to satisfy and more restrictive. (Arthur J. Humphreys et al. v. United States, 56 CCPA 67, C.A.D. 956, 407 F.2d 417 (1969); F.L. Smidth & Company v. United States, 56 CCPA 77, C.A.D. 958, 409 F.2d 1369 (1969)).
In applying these standards to the subheadings under consideration, we find the language of subheading 9027.30, HTSUS, more restrictive and difficult to satisfy than that of subheading 9027.10, HTSUS, in it requires that covered merchandise use specifically identified methodologies, i.e., infra-red spectrometry, to perform its function, whereas subheading 9027.10, HTSUS, describes a more generic spectrum of devices that perform gas or smoke analysis. Based on the foregoing, the subject merchandise is classified in subheading 9027.30.40,
HTSUS, by application of GRIs 3(a) and 6, as an infra-red spectrometer.
HOLDING:
By application of GRIs 1 and 6, the subject merchandise is classified in heading 9027,
HTSUS, specifically subheading 9027.30.40, HTSUS, which provides for, in pertinent part, “[I]nstruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); Spectrometers, spectrophotometers and spectrographs using optical radiations (ultraviolet, visible, infrared): Electrical.”
The 2015 column one, general rate of duty is free. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at http://www.usitc.gov/tata/hts/.
You are instructed to GRANT the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, CBP will make the decision available to CBP personnel and the public via www.cbp.gov, the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division