CLA-2 CO:R:C:G JMH 082462
3926.90.90
Patrick C. Reed, Esq.
Freeman, Wasserman & Schneider
Attorneys and Counsellors at Law
90 John Street
New York City, NY 10038
RE: Chromatography and electrophoresis equipment
Dear Mr. Reed:
Your letter of December 1, 1987, requesting a ruling
regarding the classification of certain chromatography and
electrophoresis equipment under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) was referred to this office
for a reply.
FACTS:
The subject merchandise consists of certain chromatography
and electrophoresis equipment imported from Sweden by Pharmacia
LKB Biotechnology Inc.
Chromatography
Chromatography is a separation and isolation method by which
a liquid or a gas (the mobile phase) is passed through a porous
solid (the stationary phase). The components of the mobile phase
separate by migrating at different rates through the stationary
phase. Once the mobile phase has traveled through the stationary
phase, the components are dispensed into different tubes or
vessels. See McGraw-Hill Encyclopedia of Science & Technology,
Vol. 3, p. 568 (6th Edition 1987). The chromatography equipment
in question is used for liquid chromatography, and may be used
for both analytical and preparative purposes. The equipment
includes columns, flow adaptors, packing reservoirs and sample
injectors, tubing connectors and fraction collectors.
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Chromatography columns are transparent plastic tubes, which
are fitted with supports at each end. The columns vary in size
from 0.5 cm to 25 cm in interior diameter and from 2.5 cm to 100
cm in length. They are imported either empty or pre-packed with
a separation medium.
The flow adaptors are attachments to be inserted into the
top of the columns. They function to protect the media bed and
to distribute the entering liquid evenly upon the surface of the
separation media within the column.
The packing reservoirs and sample injectors contain the
liquid that is to be run through the columns. The reservoirs are
made of plastic while the injectors are made of stainless steel.
These items are designed for use with other chromatographic
equipment.
The tubing connectors are specially designed plastic
fittings. The name connotes the connectors' function to join
together the various components of chromatographic apparatus.
Finally, the fraction collectors are machines which collect
the separated liquid after it flows through the chromatographic
column. A rack for test tubes or other vessels and a collection
funnel which deposits the sample into a test tube or vessel are
included with the collector. The collector is powered during the
collection process by an electric motor.
Electrophoresis
Electrophoresis involves the use of an electrical field to
cause particles in a solution to migrate toward the electrode of
opposite electrical polarity. This is performed by a base unit
which is fitted with electrodes. Generally, the unit has either
a flat slab or round rods to which a separative gel medium and
liquid sample is applied. A power supply delivers a measured
electrical charge to the base unit causing the particles within
the liquid sample to migrate toward the electrode of opposite
electrical polarity. The samples, which are usually clear, may
then be stained for better viewing. See McGraw-Hill Encyclopedia
of Science & Technology, Vol. 3, p. 238 (6th Edition 1987). An
electrophoresis experiment may be either analytical or
preparative. The following electrophoresis equipment are
included in this ruling request:
Basic electrophoresis units
Instruments used in nucleic acid electrophoresis:
Pulsaphor unit
GNA-100 and GNA-200 units
Miniphor and Macrophor submarine units
Macrophor unit
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Instruments for horizontal electrophoresis:
Multiphor II base units
FBE-3000 Base Unit
Ultrophor unit
Instruments for vertical electrophoresis:
Midget Electrophoresis Unit
2001 Vertical Electrophoresis Unit
GE 2/4 and GE 2/4 LS Vertical Electrophoresis Units
Application Kits: contain the components necessary to use the
basic units for particular techniques
Multiphor electrofocusing and immunoelectrophoresis kits
Ultrophor application kits
201 Vertical system application kits
Electrophoresis Systems: contain the basic unit and accessories
which are imported and sold together as
an entirety
"Phast System": contains a gel staining and destaining area
and is controlled by a microprocessor
Pulsaphor Systems One, Two, Three and Four: contains a base
unit, control unit, power supply and
thermostatic circulator
Macrophor System: contains a base unit and a gel casting
unit and a DNA/RNA sequencing accessory
unit
Ultrophor Starter System: contains two movable long
electrodes and the base unit
The instant ruling request does not cover various parts and
accessories used in electrophoresis such as the humidity chamber,
lid/cooling plate kits, electrofocusing strips and sample
application pieces used in horizontal electrophoresis. Nor does
the request include the importer's laser densitometer,
electrophoresis chemicals, various power supplies (when imported
separately) or the computer systems used in conjunction with
densitometry.
ISSUE:
Chromatography
Is the subject chromatography equipment properly classified
under heading 9027, HTSUSA, as "Instruments and apparatus for
physical or chemical analysis..."; under heading 8421, HTSUSA, as
"Filtering or purifying machinery and apparatus, for liquids or
gases..."; or under heading 3926, HTSUSA, as "Other articles of
plastics..."?
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Electrophoresis
Is the subject electrophoresis equipment properly classified
under heading 9027, HTSUSA, as "Instruments and apparatus for
physical or chemical analysis..."; under heading 8543, HTSUSA,
as "Electrical machines and apparatus...not specified or included
elsewhere in this chapter..."; or under heading 8421, HTSUSA, as
"Filtering or purifying machinery and apparatus, for liquids or
gases..."?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation (GRI's). 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..." The heading which provides
the most specific description is preferred. GRI 3(a), HTSUSA.
You contend that chromatography and electrophoresis
equipment are similar and therefore should be addressed in this
classification ruling together. As the foregoing description of
the equipment details, the design and nature of the two types of
instruments are dissimilar. Therefore, chromatography and
electrophoresis instruments will be discussed separately.
Chromatography
There are three competing headings for classification of the
chromatography instruments. The headings are 3926, 8421 and
9027, HTSUSA. These headings describe:
3926 Other articles of plastics and articles of
other materials of headings 3901 to 3914...
3926.90.90 Other...
* * * * * * * * * * * * *
8421 ...filtering or purifying machinery and
apparatus, for liquids and gases; parts
thereof...
8421.29.00 Filtering or purifying machinery and
apparatus for liquids...Other
* * * * * * * * * * * * *
9027 Instruments and apparatus for physical or
chemical analysis...parts and accessories
thereof...
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9027.20.80 Chromatographs and electrophoresis
instruments...Other
It is the opinion of this office that the appropriate
classification for the chromatography equipment is within heading
8421, HTSUSA. The Court of International Trade addressed this
specific equipment in Pharmacia Fine Chemicals, Inc., v. United
States, 9 CIT 438 (1985). That decision was based upon the prior
Tariff Schedule of the United States (TSUS) which is no longer in
affect. Therefore, the case is not binding on the present tariff
schedule. This office, however, finds the determination of the
chief use of these exact goods by the Court of International
Trade to be persuasive.
The merchandise in question has been studied by the Court of
International Trade and found to be "chiefly used for filtering
and purifying liquids to obtain pure materials for industrial or
commercial use." Pharmacia Fine Chemicals, Inc. v. United
States, 9 CIT at 441. Within the United States, unless the
language or context of the HTSUSA otherwise requires, goods
classified by use are classified according to their "principal
use". Additional U.S. Rule of Interpretation 1(a), HTSUSA.
"Principal use" is the present tariff's equivalent to the former
"chief use." Therefore, since the Court has examined this
equipment and determined that these apparatus are for filtering
and purifying purposes, they are classified within subheading
8421.29.00, HTSUSA.
You state that each of the above listed chromatography
equipment will be imported separately. The articles are not
imported with detectors, nor are they imported as a system. A
chromatographic system or the inclusion of a detector would
indicate a different principal use. The articles would then be
classifiable within Heading 9027, HTSUSA, which describes
"Instruments and apparatus for physical or chemical
analysis...Chromatographs and electrophoresis instruments...".
See Chapter 90, Note 3, HTSUSA.
Heading 3926, HTSUSA, addresses the material components of
the chromatography instruments. General content headings should
only be looked to if no other heading provides a more specific
description of the goods. Heading 3926, HTSUSA, is not
applicable since other specific headings exist.
Electrophoresis
The three competing headings concerning the classification
of the electrophoresis equipment are headings 8421, 8543 and
9027, HTSUSA. These headings describe:
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8421 ...filtering or purifying machinery and
apparatus, for liquids and gases; parts
thereof...
8421.29.00 Filtering or purifying machinery and
apparatus for liquids...Other
* * * * * * * * * * * * *
8543 Electrical machines and apparatus, having
individual functions, not specified or
included elsewhere in this chapter; parts
thereof...
8543.30.00 Machines and apparatus
for...electrophoresis
* * * * * * * * * * * * *
9027 Instruments and apparatus for physical or
chemical analysis...parts and accessories
thereof...
9027.20.40 Chromatographs and electrophoresis
instruments...Electrical...
It is the opinion of this office that the electrophoresis
instruments in question are classifiable within heading 9027,
HTSUSA. The classification of these goods, like the
chromatography instruments, is controlled by their principal use.
The principal use is judged by "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..." Additional U.S. Rules of Interpretation 1(a), HTSUSA.
The class of electrophoresis instruments are principally used in
research for physical or chemical analysis.
That electrophoresis instruments are principally used for
analytical purposes is substantiated by the United States
Electrophoresis Society and by other American manufacturers of
similar units including Hoeffer Scientific, Biorad, and
International Biotechnology. Furthermore, your catalogue details
graph and curve production, and densitometric techniques that are
integral aspects of electrophoresis capabilities. The separate
importation of these articles does not alter their actual use
within this country.
You contend that heading 8543, HTSUSA, is an appropriate
classification for these articles. Heading 8543, HTSUSA, is a
general heading to be resorted to only when no other more
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specific heading within the Nomenclature applies. GRI 3(a),
HTSUSA; Explanatory Note 85.43, Harmonized Commodity Description
and Coding System, Vol. 4, p. 1402. Since other more specific
headings pertain to the goods, heading 8543, HTSUSA, is not a
proper classification.
Alternataively, you argue that heading 8421, HTSUSA,
describes the electrophoresis instruments, should heading 8543,
HTSUSA, not apply. It is your contention that the merchandise in
question merely separates or filters substances. Although the
items do have preparative uses, it is our determination that this
is not their principal use. Electrophoresis is primarily used to
analyze protein and DNA samples. Since the articles principal
use is for "physical or chemical analysis" within the research
industry, and not for "filtering" for commercial purposes,
heading 8421, HTSUSA, does not apply.
Parts and Accessories
You request in your letter of September 29, 1989, that this
ruling not include the parts and accessories to the instruments
in question, as they are "properly classifiable in the same
tariff provision as the merchandise included in the ruling
request." This is only the situation if the parts and
accessories do not fall within their own heading, as Section XVI,
Note 2, HTSUSA and Chapter 90, Note 2, HTSUSA, clearly state.
For example, a device which enables chromatography equipment to
perform analytical functions would be properly classified within
heading 9027, HTSUSA, not heading 8421, HTSUSA.
HOLDING:
The chromatography columns, flow adaptors, packing
reservoirs and sample injectors, tubing connectors and fraction
collectors are classified within subheading 8421, HTSUSA. The
rate of duty is 3.9 percent ad valorem. The electrophoresis
equipment is classified within subheading 9027.20.40, HTSUSA.
The rate of duty is 4.9 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division