CLA-2 CO:R:C:M 957284 DWS
Ms. Rosemarie Smallcombe
Manager, Corporate Customs
Varian Associates, Inc.
P.O. Box 10800
Palo Alto, CA 94303-0883
RE: Spectrometer Subassemblies; Explanatory Notes 90.27(5)
and 3(b)(VIII); Unfinished Spectrometers; GRI 2(a);
Daisy-Heddon, Div. Victor Comptometer Cor. v. U.S.;
9027.90.55
Dear Ms. Smallcombe:
This is in response to your letter of September 30, 1994, to
the Regional Commissioner of Customs, New York, concerning the
classification of spectrometer subassemblies under the Harmonized
Tariff Schedule of the United States (HTSUS). Your letter was
referred to this office for a response.
FACTS:
The merchandise consists of spectrometer subassemblies which
will be manufactured in Australia. They will be imported into
the U.S. and, with separate components, will be assembled into
complete spectrometers. The spectrometers which will be created
are Atomic Absorption (AA) spectrometers, Ultraviolet-Visible-Near Infrared (UV-VIS-NIR) spectrometers, and Inductively Coupled
Plasma-Atomic Emission Spectroscopy (ICP-AES) spectrometers. The
AA and ICP- AES spectrometers share similar applications such as
in pollution control and the clinical testing of blood, urine,
and other biological materials. The UV-VIS-NIR spectrometers
have a wider range of applications such as DNA analysis, reaction
monitoring, and other optical testing.
Spectrometers contain various components: a source of
radiation, a monochromator, a sample holder, a detector, and a
readout device. The source of radiation for the AA and UV-VIS-NIR spectrometers is a lamp; whereas the source of radiation for
the ICP-AES spectrometer is gas plasma. The source may be set at
one wavelength or at many wavelengths. The intensity of the
source is controlled by printed circuit boards (PCBs).
Wavelength control is achieved by the monochromator which focuses
a broad band of light to one wavelength. The monochromator
consists of various optical elements such as mirrors and
diffraction grating, which are precisely positioned in the
subassemblies prior to importation into the U.S. The sample
holder is used to present the sample to the spectrometer. The
detector detects the element or substance which is being analyzed
and, for all the subject type of spectrometers, is a
photomultiplier tube. It is supported by PCBs. The readout
device is a personal computer with specially designed software
packages.
The subassemblies are optical chassis which are comprised of
a metal housing (which will become the spectrometer cover when
the unit is fully assembled in the U.S.), the monochromator
containing the essential optical elements, fans, motors,
mechanical devices which adjust the optical elements, gas control
systems (for the AA and ICP-AES spectrometers), and wiring to
link the components.
The sources, detectors, PCBs, and personal computers will be
added to the subassemblies in the U.S. to form complete
spectrometers. The sources, detectors, and personal computers
will be purchased from U.S. and Japanese suppliers, and the PCBs
will be constructed in the U.S.
The subheadings under consideration are as follows:
9027.30.40: [i]nstruments and apparatus for physical or
chemical analysis (for example, . . .
spectrometers, . . .); . . . : [s]pectrometers,
spectrophotometers and spectrographs using
optical radiations (ultraviolet, visible,
infrared): [e]lectrical.
The general, column one rate of duty for goods classifiable
under this provision is 4.9 percent ad valorem.
9027.90.55: . . . : [p]arts and accessories: [o]f
electrical instruments and apparatus: [o]ther:
[o]ther.
The general, column one rate of duty for goods classifiable
under this provision is 4.9 percent ad valorem.
ISSUE:
Whether the spectrometer subassemblies are unfinished
spectrometers classifiable under subheading 9027.30.40, HTSUS, or
as parts of spectrometers classifiable under subheading
9027.90.55, HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's).
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive or
legally binding, 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). In part, Explanatory Note
90.27(5) (p. 1514) states that:
[t]his heading includes:
(1) - (4) xxx
(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. . .
GRI 2(a) states that:
[a]ny 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.
You claim that because the subassemblies are missing the
source of radiation, detector, PCBs, and personal computers, they
cannot be classifiable as unfinished spectrometers but are
classifiable as parts of spectrometers. It is your principal
argument that without these components, which consist of over
half the cost of complete spectrometers, the subassemblies are
incapable of operating as complete spectrometers and are
therefore substantially incomplete articles. You cite Daisy-Heddon, Div. Victor Comptometer Cor. v. U.S., 66 CCPA 97, C.A.D.
1228, 600 F.2d 799 (1979), which has interpreted the Tariff
Schedules of the United States (TSUS), the precursor to the
HTSUS, to demonstrate the criteria necessary for an article to be
unfinished.
Decisions under the TSUS are not dispositive in interpreting
the HTSUS. However, on a case-by-case basis they should be
considered instructive in interpreting the HTSUS, particularly
where the nomenclature previously interpreted in those decisions
remains unchanged and no dissimilar interpretation is required by
the text of the HTSUS. H. Conf. Rep. No. 576, p.550.
Cases such as Daisy-Heddon are not instructive in the
classification of articles under the HTSUS, because, as a result
of GRI 2(a), a dissimilar interpretation is required by the text
of the HTSUS. GRI 2(a) calls for an "essential character" test
and not a "substantially complete" test. The criteria of Daisy-Heddon is not used in classifying goods under the HTSUS.
The definition of essential character is provided for in
Explanatory Note 3(b)(VIII) (p. 4). It states that:
[t]he factor which determines 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 upon the information provided, it is our position that
the subject subassemblies impart the essential character of
finished spectrometers. It is our understanding that the
components (the monochromator) of the subassemblies, which
contain the precision optics essential for analyzing samples,
perform the actual function of the spectrometers, which is
physical analysis. The subassemblies are dedicated for use with
spectrometers, and the optics are precisely set in the
subassemblies prior to importation. You state that the
subassemblies lack any of the control components necessary for
use as spectrometers, and that these capabilities lie in the
components added in the U.S. (the personal computers and PCBs).
The test is not whether the subassemblies perform as if they were
finished spectrometers, but whether they impart the essential
character of finished spectrometers. We find that the
subassemblies perform a primary role in relation to the use of
finished spectrometers, and therefore impart the essential
character of those articles.
Therefore, the subject subassemblies are classifiable under
subheading 9027.30.40, HTSUS.
HOLDING:
The spectrometer subassemblies are unfinished spectrometers
classifiable under subheading 9027.30.40, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division