CLA-2 OT:RR:CTF:TCM H062209 JER
Sidney H. Kuflik, Esq.
Lamb & Lerch, Counsellors at Law
233 Broadway, Suite 2702
New York, NY 10279
RE: Request for a Binding Ruling; Classification of a Purification Plant for rare gases
Dear Mr. Kuflik:
This is in response to your letter dated May 21, 2009, on behalf of your client, to the Office of International Trade, United States Customs and Border Protection (“CBP”), in which you requested a binding ruling pertaining to the tariff classification of a Purification Plant for rare gases under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise is described as being a multi-step facility designed to separate a certain rare gas from a gaseous mixture. The subject merchandise is produced and assembled in an overseas location and then “broken down into eight modules to be transported together to the U.S.” The Plant is described as consisting of the following units: a feedgas compressor, a balloon system, a catalytic reactor for gas removal, a dryer for removal of water, a recycle system for cold generation, a vacuum insulated coldbox with equipment for gas separation, a low temperature purification unit, a dewar unit for storage, a high pressure pump and vaporizers for delivery of the gases to filling facilities, and process/product analysis equipment and a plant control system. The numerous processing operations performed by the machines were described to CBP in your submission.
ISSUE:
Whether the rare gas purification plant, imported disassembled is classifiable as a “distilling or rectifying plant” under heading 8419, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The 2009 HTSUS provisions under consideration are as follows:
8419 Machinery, plant or laboratory equipment, whether or not electrically heated (excluding furnaces, ovens and other equipment of heading 8514), for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic purposes; instantaneous or storage water heaters, nonelectric; parts thereof:
8419.40.00 Distilling or rectifying plant
Note 4 to Section XVI, HTSUS, in which Chapter 84 is located, provides that:
Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or 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 Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not 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 (August 23, 1989).
Explanatory Note 84.19 explains that:
[T]he heading covers machinery and plant designed to submit materials … to a heating or cooling process in order to cause a simple change of temperature, or to cause a transformation of the materials resulting principally from the temperature change (e.g., … evaporating, vaporizing, …processes). But the heading excludes machinery and plant in which the heating or cooling, even if essential, is merely a secondary function designed to facilitate the main mechanical function of the machine or plant [.]
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(II) DISTILLING OR RECTIFYING PLANT
With the exception of distillation apparatus of ceramics (heading 69.09) or of glass (heading 70.17 or 70.20), this group comprises all plant designed for distilling substances (whether liquid or solid).
* * * *
(B) Fractionating or rectifying plant.
These are more complicated continuous installations incorporating vertical fractionating columns which enable complex mixtures to be separated in one operation. The most usual type of column is divided into interconnecting sections by plates fitted with bubbling caps and down flow tubes. Vapour rising from one section is thus brought into intimate contact with a condensed portion of the vapour in the section above and, since the temperature decreases as the vapours rise in the column, they can be separated at different levels corresponding to their boiling points.
* * * *
Continuous distillation plant (simple or fractional) is used in many industries (e.g., for the distillation of …liquid air…).
You state that the various pieces of equipment and machinery are combined together to form a single rectifying plant. You further contend that the description for a “fractionating or rectifying plant” in EN 84.19 (II)(B) accurately reflects the “essence” of how the purification plant separates a certain gas from the underlying gaseous mixture. Thus, you conclude that the subject purification plant is classifiable in heading 8419, HTSUS, as a rectifying plant.
Note 4 to Section XVI, HTSUS, provides for the classification in a single heading of a combination of machines which together contribute to a single clearly defined function. In the instant case, the individual machines are classifiable in their own respective HTSUS provisions when imported separately. For instance, the machine that performs the gas liquification function would be classified in subheading 8419.60, HTSUS, and the dryer for the removal of water would be classified in subheading 8419.20.00, HTSUS. However, once assembled into the subject rare gases purification plant they contribute to a single clearly defined function, that is, the fractionation of gases. Fractionating and rectifying machinery are provided for eo nomine in heading 8419, HTSUS, and are described in EN 84.19. Based on the function of the purification plant at issue, we find that it is classified in heading 8419, HTSUS. Similarly, in Headquarters Ruling Letter (“HQ”) 952810, dated December 9, 1992, we held that, when imported together, an incubator and gas mixture apparatus was a functional unit because the collection of machinery contributed to a clearly defined function, described within the terms of heading 8419, HTSUS.
According to your submission, because of the size of the Plant, after it is produced and assembled overseas, it is broken down into eight modules that are transported and entered together into the U.S. GRI 2(a) provides that any reference in a heading to an article shall be taken to include a reference to complete or finished articles that are entered disassembled. Under CBP Regulation (19 C.F.R. § 141.58), separately arriving portions of unassembled or disassembled entities may be processed as a single entry. Accordingly, provided that all the components of the subject purification plant are part of a single entry, they may be classified as a “distilling or rectifying plant” under subheading 8419.40, HTSUS.
HOLDING:
By application of GRI 1 (Note 4 to Section XVI) and GRI 2(a), the purification plant for rare gases when entered in its entirety, is classified under heading 8419, HTSUS, and is specifically provided for in subheading 8419.40.00, HTSUS, which provides for “Machinery, plant or laboratory equipment, whether or not electrically heated…for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic purposes; …: Distilling or rectifying plant.” The 2009 column one, general rate of duty is Free.
Duty rates are provided for convenience only and are 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/tata/hts/. A copy of this ruling letter should be attached to entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch