CLA-2 RR:CR:GC 962625 HMC
Port Director of Customs
10 Causeway St., Ste. 603
Boston, MA 02222-1059
RE: Protest 0401-98-100218; Cryostat; Other Instruments and Apparatus for Chemical Analysis; Nuclear Magnetic Resonance Instruments
Dear Port Director:
This is our decision on Protest 0401-98-100218, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a cryostat. The entry under protest was made in 1997 and liquidated on June 5, 1998, and this protest timely filed on September 2, 1998. In preparing this decision, consideration was given to a supplemental submission by counsel on behalf of the protestant, dated May 12, 1999, as well as arguments presented at a meeting on April 6, 1999.
FACTS:
The merchandise under protest is a cryostat that consists of various components, including an electromagnetic device, superconducting shims, a radiation baffle, manifold, shorting plug, blowout tube, dipstick, vessel base insulation pads, helium pressure relief valve, various washers, screws, “O” rings and cryostat legs. The cryostat outer casing is made of steel and copper and resembles a water heater tank. The interior contains chambers, which include vacuum chambers and compartments filled with liquid helium and liquid nitrogen. The helium compartment surrounds the electromagnetic device which is imbedded at the center of the cryostat. Surrounded by the electromagnetic device, at the core of the cryostat, is a bore or cavity into which a chemical sample is inserted inside a probe. The chambers in the cryostat are precisely arranged to provide the requisite temperature for superconductivity of the electromagnetic component. The electromagnetic device is made of niobium titanium and niobium tin wires that create a uniform and homogeneous (without fluctuation) electromagnetic field.
Counsel for the protestant states that the cryostat is exclusively designed to perform nuclear magnetic resonance (NMR) spectroscopy. NMR spectroscopy is a highly developed technology, which enables a scientist to analyze the molecular structure of chemical samples through the combination of an almost perfect homogenous magnetic field and the radio frequency absorption properties of individual nuclei in the sample.
After importation, the cryostat is connected to a radio frequency transmitter and a computer, which operates a specially-designed NMR software. In order to conduct a spectrometry analysis of a chemical sample, the cryostat’s temperature is set at approximately 4 degrees Kelvin (minus 269 degrees centigrade), and an initial electrical current is fed by the power supply to the electromagnetic device within the cryostat, generating an electromagnetic field. The sample is placed within the probe and inserted inside the cryostat. The transmitter generates short pulses of radio frequency energy, controls the amplitude of these pulses as they are sent to the probe, and converts the analogue audio frequency signal emitted during the NMR analysis back to a digital signal for use by the computer. The computer stores the NMR data and converts it (using the software) into a readable format.
The merchandise was entered and liquidated under a provision for electromagnets under subheading 8505.90.80, HTSUS, pursuant to New York Ruling Letter (NY) C86387, dated May 1, 1998. Protestant claims that the merchandise is not an electromagnet but a nuclear magnetic resonance instrument of subheading 9027.80.25, HTSUS.
The 1997 provisions under consideration are as follows:
8418 Refrigerators, freezers and other refrigerating or freezing equipment, electric or other; heat pumps, other than the air conditioning machines of heading 8415; parts thereof:
Other refrigerating or freezing equipment; heat pumps:
8418.69.00 Other...1.2%
* * * *
8505 Electromagnets; permanent magnets and articles intended to become permanent magnets after magnetization; electromagnetic or permanent magnet chucks; clamps and similar holding devices; electromagnetic couplings, clutches and brakes; electromagnetic lifting heads; parts thereof:
8505.90 Other, including parts:
8505.90.80 Other...2.3%
* * * *
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:
9027.80 Other instruments and apparatus:
9027.80.25 Nuclear magnetic resonance instruments...Free
Other:
9027.80.45 Electrical...Free
9027.90 Microtomes; parts and accessories:
Parts and accessories:
Of electrical instruments and apparatus:
Other:
9027.90.54 Of instruments and apparatus of subheading 9027.20, 9027.30, 9027.40, 9027.50 or 9027.80...Free
ISSUE:
Whether the cryostat is classifiable as an unfinished nuclear magnetic resonance instrument under subheading 9027.80.25, HTSUS, or as an electromagnet under subheading 8505.90.80, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
Protestant claims that the cryostat is an unfinished NMR device classifiable as a NMR instrument under subheading 9027.80.25, HTSUS. Alternatively, protestant argues the cryostat is classifiable under subheading 9027.90.54, HTSUS, as a part of a NMR instrument or under subheading 8418.69.00, HTSUS, as other refrigerating or freezing equipment, and that it is not an electromagnet of heading 8505, HTSUS.
GRI 2(a) states that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
Section XVI, Note 1(m), HTSUS, states that this section (which includes Chapters 84 and 85) does not cover articles of Chapter 90. If the cryostat is a good described by a heading of Chapter 90, it cannot be classified in a heading of Chapter 84 or 85.
Chapter 90, Note 3, HTSUS, states that the provisions of Note 4 to Section XVI apply to this chapter. Note 4, Section XVI, HTSUS, states that
[w]here a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.
The cryostat with two other components, a radio frequency transmitter and a computer that operates a specially-designed NMR software, make up a nuclear magnetic resonance (NMR) instrument, which is among the instruments and apparatus for physical and chemical analysis of heading 9027, HTSUS. The evidence shows that the three machines are interdependent on each other and could not produce results independently of one another. All three machines, if imported together, would be classifiable as nuclear magnetic resonance instruments under subheading 9027.80.25, HTSUS. We note however that the cryostat is not imported with the other two components that make up the NMR system.
It is a well established principle that an imported article is to be classified according to its condition as imported. Customs has consistently held that individual components of a functional unit must be imported together. They cannot be classified as unfinished functional units or parts of functional units. See HQ 957150, dated January 30, 1995, and HQ 950218, dated April 17, 1992. The fact that several machines, if imported together, would be classified under a single heading as a functional unit does not mean that the same should hold true if they are imported separately. When imported separately, the machines must be individually classified. In this instance, we find that the cryostat, imported by itself, must be individually classified. Accordingly, we must determine which heading describes the subject merchandise in its imported condition.
Heading 9027, HTSUS, provides in pertinent part for “[i]nstruments and apparatus for physical or chemical analysis (for example polarimeters, refractometer, spectrometers, gas or smoke analysis apparatus).” In HQ 089800, dated September 13, 1991, Customs held that heading 9027 is a use provision. Additional U.S. Rule of Interpretation 1(a), HTSUS, states that in the absence of special language or context which otherwise requires, a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In HQ 089800, Customs noted that the phrase “instruments and apparatus for physical and chemical analysis” described articles used to facilitate physical or chemical determination of the quantity, qualities, or composition of a substance.
It is Customs view that the cryostat is described by heading 9027 because the evidence shows it is principally used to conduct chemical analysis. In his submission, counsel for the protestant states that the cryostat is exclusively designed to perform nuclear magnetic resonance (NMR) spectroscopy. Counsel further states that NMR spectroscopy is a highly developed technology, which enables a scientist to analyze the molecular structure of chemical samples.
Citing HQ 957284, dated December 7, 1994, counsel argues that the cryostat is classifiable as an unfinished NMR instrument because it has the essential character of such instrument. In general, essential character has been construed to mean that attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, the ENs state that the factors which help determine essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
Based on the evidence presented, we find that the cryostat imparts the essential character of a finished NMR instrument. Similar to the merchandise of HQ 957284, the cryostat is the operative instrument for performing NMR analysis and it is dedicated for such use (i.e., its “architecture” is unique to NMR analysis). It thus performs the primary role in relation to the use of the finished NMR instrument. The cryostat is therefore classifiable under subheading 9027.80.25, HTSUS, as nuclear magnetic resonance instruments. Since the merchandise is described by heading 9027, it is precluded from classification under subheading 8418.69.00, or subheading 8505.90.80, pursuant to Note 1(m), Section XVI, HTSUS.
HOLDING:
The cryostat is classifiable under subheading 9027.80.25, HTSUS, as “Other instruments and apparatus: Nuclear magnetic resonance instruments.”
This protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division