CLA-02 OT:RR:CTF:TCM W967842 JPJ
TARIFF NO: 8479.89.98
Mr. Brechbuhler
Brechbuhler, Inc.
3845 FM 1960 W
One Cornerstone Plaza, Suite 275
Houston, Texas 77068
RE: Revocation of NY 899900 (issued on July 20, 1994) regarding ALS 104 GC Auto-Sampler
Dear Mr. Brechbuhler:
The National Commodity Specialist Division of Customs and Border Protection (CBP) issued ruling NY 899900 on July 20, 1994, to Mass Evolution Inc., regarding the classification of the ALS 104 GC Auto-Sampler under the Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered this ruling, and now believe that the classification of the ALS 104 GC Auto-Sampler specified in NY 899900 is incorrect. This ruling sets forth the correct classification of the ALS 104 GC Auto-Sampler. An Internet search revealed that Brechbuler, Inc. was the successor company for products sold by Mass Evolution, Inc.
Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057 2186 (1993), notice of the proposed revocation of NY 899900 was published in the Custom Bulletin, Volume 39, Number 40, on November 23, 2005. Four comments were received in response to the notice. They are discussed in the Law and Analysis section of this ruling.
FACTS:
The subject merchandise under consideration in NY 899900 was called the ALS 104 GC Auto-Sampler (auto-sampler). It was described in the ruling as an automatic programmable sample injector that could be programmed for right or left injection in up to four vertical ports. The ruling further indicated that the auto-sampler worked in conjunction with a gas chromatograph by performing repetitious motions of drawing samples from a vial tray. It performed its function by injecting samples into a gas chromatograph and by raising the injection syringe in the vials. The auto-sampler mainly consisted of a motorized tray and a sampling tower, which contained motors and syringes that were used for drawing liquids analyzed by the gas chromatograph from the test vials. The device rotated the tray, and then raised and lowered a syringe into the test vials to draw the liquid. It also had a position for flush vials that were used to clean the syringe after an injection and a position for a waste vial where a solvent used for rinsing was disposed.
ISSUE:
Whether the auto-sampler is classified under heading 8479, HTSUS, as a machine or mechanical appliance having individual functions not specified or included elsewhere or under heading 9027, HTSUS, as a part or accessory of an instrument and apparatus for physical or chemical analysis.
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 may then be applied.
The HTSUS provisions under consideration are as follows:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances:
8479.89 Other:
Other:
8479.89.98 Other.
* * *
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:
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,
9027.50 or 9027.80
* * *
Note 1(m) to Section XVI, HTSUS, states that the section does not cover:
Articles of chapter 90;
Note 2(a) to Chapter 90, HTSUS, states:
2. Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
(a) Parts and accessories which are goods included in any of the
headings of this chapter or of chapter 84, 85 or 91 (other than heading
8487, 8548 or 9033) are in all cases to be classified in their respective
headings;
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the Harmonized System. CBP believes the EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The ENs to heading 8479, HTSUS, provide in relevant part:
This heading is restricted to machinery having individual functions, which :
(a) Is not excluded from this Chapter by the operation of any Section or
Chapter Note.
and (b) Is not covered more specifically by a heading in any other
Chapter of the Nomenclature.
* * *
The machinery of this heading is distinguished from the parts of machinery, etc., that fall to be classified in accordance with the general provisions concerning parts, by the fact that it has individual functions.
For this purpose the following are to be regarded as having “individual functions”:
* * *
(B) Mechanical devices which cannot perform their function unless they are mounted on another machine or appliance, or are incorporated in a more complex entity, provided that this function:
(i) is distinct from that which is performed by the machine or appliance whereon they are to be mounted, or by the entity wherein they are to be incorporated, and
(ii) does not play an integral and inseparable part in the operation of such machine, appliance or entity.
The ENs to heading 9027, HTSUS, provide in relevant part:
Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), the heading also covers parts and accessories identifiable as being solely or principally for use with the above mentioned instruments and apparatus.
EN 90.27(24) states:
Chromatographs (such as gas-, liquid-, ion- or thin-layer chromatographs) for the determination of gas or liquid components. The gas or liquid to be analysed is passed through columns or thin layers of absorbent material and then measured by means of a detector. The characteristics of the gases or liquids under analysis are indicated by the time taken for them to pass through the columns or thin layers of absorbent material, while the quantity of the different components to be analysed is indicated by the strength of the output signal from the detector.
* * *
Two commenters contend that the auto-sampler is precluded from classification in heading 8479, HTSUS, by operation of note 1(m) to Section XVI, HTSUS. Note 1(m) to Section XVI, HTSUS, excludes goods of the section, including heading 8479, HTSUS, provided that the good is determined to be classifiable in Chapter 90, HTSUS.
Of particular importance is the Court of Appeals for the Federal Circuit’s decision in Sharp Microelectronics Technology, Inc. v. United States, 122 F. 3d 1446 (CAFC 1997), wherein the Court stated “[i]f one determines that a [good] belongs in [chapter 90] because it is not more specifically captured elsewhere in the schedule, then Note 1(m) complements the rule of relative specificity by excluding the device from classification in Chapter 84.” Id. at 1450.
Accordingly, in classifying the instant auto-sampler, we must examine whether the auto-sampler could be classified in heading 9027, HTSUS, as a part or an accessory to a gas chromatograph, the apparatus attached to the auto-sampler.
The term “accessory” is not defined in the HTSUS or in the ENs. However, this office has stated that the term “accessory” is generally understood to mean an article which is not necessary to enable the goods with which they are intended to function. They are of secondary importance, but must, however, contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation). See Headquarters Ruling Letter (HQ) 958710, dated April 8, 1996; HQ 950166, dated November 8, 1991. We also employ the common and commercial meanings of the term “accessory”, as the courts did in Rollerblade v. United States, wherein the Court of International Trade derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247 (CIT 2000), aff’d, 282 F. 3d 1349 (Fed. Cir. 2002) (holding that inline roller skating protective gear is not an accessory because the protective gear does not directly act on or contact the roller skates in any way); see also HQ 966216, dated May 27, 2003.
In performing its function, the auto-sampler is attached to the gas chromatograph. It is intended for use solely with a chromatograph. It also contributes to the effectiveness of a gas chromatograph by mechanizing the processes of injecting samples into the gas chromatograph and by raising the injection syringe in the vials. Without the auto-sampler, the samples would have to be fed to the gas chromatograph by hand. Based on the above definition of the term accessory, the auto-sampler is an accessory of the gas chromatograph.
However, Note 2(a) to Chapter 90, HTSUS, excludes goods of Chapter 84, HTSUS, from classification in Chapter 90, HTSUS. Moreover, Additional U.S. Rules of Interpretation (AUSRI) 1(c) provides that “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory”. Accordingly, if the auto-sampler is classified in heading 8479, HTSUS, it cannot be classified in heading 9027, HTSUS.
Three commenters note that the terms of heading 8479, HTSUS, require that the machines of the heading not be elsewhere specified or included. These commenters characterize heading 8479, HTSUS, as a residual provision which cannot be considered since the auto-sampler is included in heading 9027, HTSUS. As such, two commenters contend that Note 2(a) is, therefore, inapplicable.
The term “not elsewhere specified or included” does not render this residual provision for machines with individual functions a “basket” or non-specific provision. In Sharp Microelectronics, supra, the court found that heading 9013, HTSUS, the provision for “liquid crystal devices not constituting articles provided for more specifically in other headings; . . .other optical appliances and instruments, not specified or included elsewhere in this chapter;. . .,” was not a “basket” provision. The court explained that the provision “is simply another specific provision acknowledging that it may be more or less difficult to satisfy than some other provision, or a more or less accurate or certain provision than some other to describe a particular article.” Id. at 1450. So too, heading 8479, HTSUS, specifically describes machines having individual functions, but acknowledges that other headings for machines with individual functions may provide a more specifically described home for the merchandise at issue. As such, a determination whether the auto-sampler is classifiable in heading 8479, HTSUS, is necessary.
The express terms of heading 8479, HTSUS, provide, in relevant part, for machines having individual functions. As set forth supra, a machine has an individual function if it performs a function which is distinct from the appliance to which it is incorporated, does not play an integral or inseparable part in the operation of the appliance, and cannot perform its function unless it is incorporated in a more complex entity.
The auto-sampler at issue is clearly a machine whose function of drawing samples from the vials and injecting the samples into a gas chromatograph is distinct from the gas chromatograph’s function of analyzing the samples. The auto-sampler is not an integral and inseparable part of the gas chromatograph because the gas chromatograph can function without the auto-sampler being attached to it. As such, we conclude that the auto-sampler is a machine having an individual function which is excluded from heading 9027, HTSUS, by operation of Note 2(a) to Chapter 90, HTSUS. Note 1(m) to Section XVI, HTSUS, is not applicable insofar as under a relative specificity analysis, heading 8479, HTSUS, is more difficult to meet than classification as an accessory in heading 9027, HTSUS. See Sharp, supra at 1449. This conclusion is consistent with NY 883067, dated March 10, 1993; NY 893932, dated February 15, 1994; NY G82571, dated October 20, 2000 and; HQ 965754, dated October 4, 2002, which determined that similar machinery was classified in heading 8479, HTSUS.
Two commenters argue that classifying the auto-samplers in heading 8479, HTSUS, is inconsistent with the trade policy of the United States as articulated in the Information Technology Agreement (ITA) (Ministerial Declaration on Trade in Information Technology Products, Attachment A, WTO, 13, December 1996). The commenters claim that classifying the auto-samplers as parts and accessories of products of heading 9027, HTSUS, is consistent with the language and the intent of the ITA.
Our decision herein is not inconsistent with obligations of the United States as articulated in the ITA. Pursuant to Presidential Proclamation No. 7011, the U.S. implemented the agreement by creating various new provisions to cover the commodities listed in the Ministerial Declaration on Trade in Information Technology Products and its Annex (together referred to as ITA).
This office acknowledges the commenters’ statement that “high-tech” products were enumerated in the ITA. However, the ITA does not cover all “high-tech” products. Also, the ITA does not determine the tariff classification of specific products. Accordingly, we do not agree with the commenters’ contention that, based on the terms or intent of the ITA, this office is required to classify the auto-sampler in heading 9027, HTSUS.
Application of GRI 3(a) to classify the auto-samplers is not necessary as suggested by one commenter, insofar as the auto-sampler is classifiable in accordance with GRI 1. Moreover, assuming, arguendo, that a GRI 3(a) analysis were warranted, as noted supra, heading 8479, HTSUS, more specifically provides for the merchandise at issue than does heading 9027, HTSUS, as an accessory.
HOLDING:
In accordance with GRI 1, and Note 2(a) to Chapter 90, HTSUS, the auto-sampler platform is classified in heading 8479, HTSUS. It is specifically provided for in subheading 8479.89.98.97, HTSUS, which provides for: “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Other: Other.” The general, column one rate of duty is 2.5 percent ad valorem.
Duty rates are provided for requester’s convenience 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 http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY G86629 dated January 29, 2001 and NY G84697 dated December 12, 2000, are revoked with respect to the classification of the auto-sampler platform.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division