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HQ 087407


September 21, 1990

CLA-2 CO:R:C:G 087407 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.80.40

Mr. John J. Galvin
Galvin, Haroian & Milawski
Attorneys at Law
425 Park Avenue - 29th Floor
New York, N.Y. 10022

RE: Ion Mass Spectrometer. Secondary ion mass spectrometry; heading 9027; Explanatory Note (6) 90.27; Mass spectroscope; Mass spectrograph; Mass spectrometry; Ion microscope; Ion microprobe; Heading 9030; General Rule of Interpretation 1.

Dear Mr. Galvin:

Your letter of May 16, 1990, requesting a tariff classification ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), has been forwarded to this office for reply.

FACTS:

The article in question is the Ion Mass Spectrometer 4f (IMS). The submitted literature states that the merchandise at issue is the only Secondary Ion Mass Spectrometry (SIMS) instrument combining the capabilities of an ion microscope and an ion microprobe. SIMS is described as a powerful technique used for elemental surface analysis and depth profiling in a wide range of materials. The IMS is claimed to have major applications in semiconductor technology, material sciences, geology and biology.

ISSUE:

Whether the IMS is classifiable within subheading 9030.10.00, HTSUSA, which provides for instruments and apparatus for measuring or detecting ionizing radiations; or classifiable within subheading 9027.80.40, HTSUSA, which provides for other instruments and apparatus for physical or chemical analysis.

LAW AND ANALYSIS:

Heading 9027, HTSUSA, provides for "[i]nstruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus) . . . " Counsel for the importer states that the IMS satisfies this description. Furthermore, mass spectro- graphs and similar apparatus for analyzing the isotopic constitution, etc., of materials are provided for within heading 9027. Explanatory Note (EN)(6) 90.27. The IMS performs isotope analysis by use of mass spectrometry. However, Counsel claims that the IMS is more than a mass spectrograph or similar apparatus. We disagree with this claim for the following reasons.

A mass spectroscope is an instrument used for determining the masses of atoms or molecules found in a sample of gas, liquid, or solid. McGraw-Hill Encyclopedia of Science and Technology (MH) (6th ed.), vol. 10, p. 499 (1987). A spectro- scope operates by sending a beam of ions (i.e., electrically charged atoms or molecules) through a combination of electric and magnetic fields so arranged that a mass spectrum is produced. If the ions fall on a photographic plate which after development shows the mass spectrum, the instrument is called a mass spectrograph. However, if the spectrum is allowed to sweep across a slit in front of an electrical detector which records the current, it is called a mass spectrometer. The IMS at issue involves this type of activity.

The submitted literature refers to the IMS at issue as a mass spectrometer designed for imaging purposes. Mass spectrom- etry is described as an analytical technique for identification of chemical structures, determination of mixtures, and quantitative elemental analysis, based on the application of the mass spectrometer. MH p. 492. Mass spectrometry is also described as a general quantitative and qualitative analyzer for most components in all types of samples (i.e., gas, liquid or solid). Van Nostrand's (VN), Scientific Encyclopedia, (7th ed.), vol. II, p. 1798 (1988). Mass spectrometry operates by the introduction of a sample into an evacuated area (ion source), where it is ionized, accelerated by an electrostatic field and separated according to mass. These masses are then collected and measured.

The IMS combines the capabilities of an ion microscope and an ion microprobe. Counsel for the importer states that in the Ion Microscope Mode of the IMS, a primary ion beam of large dimension illuminates the sample surface. Secondary ions are emitted, which undergo mass filtering, and are then collected and
displayed simultaneously for analysis. Counsel additionally states that in the Ion Microprobe Mode of the IMS, a small diameter primary ion beam is rastered over the sample surface. Secondary ions are emitted from the sample surface which possess the characteristics of the elements or isotopes of the sample. These ions are then magnified and transformed into an electron image which can be analyzed in several ways. Each of these operations involve the type of mass spectrometry discussed previously. Accordingly, we conclude that the IMS is accurately described by the terms of heading 9027. More specifically, the IMS is specifically provided for within subheading 9027.80.40, HTSUSA.

Heading 9030, HTSUSA, provides for instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations. The key words in this heading are "measuring or detecting". The instruments and apparatus described within the ENs to this heading all involve the measuring or checking of radiation. The IMS at issue does not satisfy this description. Instead as counsel admits, the IMS constitutes an instrument or apparatus for physical or chemical analysis. Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings. The IMS at issue is not described by the terms of heading 9030 and cannot be classified therein.

HOLDING:

The Ion Mass Spectrometer at issue is classifiable within subheading 9027.80.40, HTSUSA, which provides for other instruments and apparatus for physical or chemical analysis dutiable at the rate of 4.9 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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