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HQ 952810

December 9, 1992

CLA-2 CO:R:C:M 952810 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8419.89.50; 8419.50.00

Mr. Robert Gladstone
Emery Customs Brokers
211 Porter Street
Emery Building
Logan International Airport
East Boston, MA 02128

RE: Revocation of NY 874139; Laboratory Incubators; Gas Mixture Apparatus; Explanatory Note 85.14(I); NY 868377; Explanatory Note 84.19; Explanatory Note 84.19(I)(B); Functional Unit; Section XVI, Note 4; 8514.30.00

Dear Mr. Gladstone:

This is in response to your letter of September 6, 1992, to the Customs Information Exchange, on behalf of Fertility Technologies, concerning the classification of a laboratory incubator and a gas mixture apparatus under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter has been referred to Headquarters for a reply.

FACTS:

The merchandise consists of a laboratory incubator and a gas mixture apparatus. The incubator, model no. FIV 6, is used for the fertilization of human sperm cells. It operates at a maximum temperature of 40 degrees celsius (104 degrees fahrenheit). Installed on a laboratory countertop or under a sterile hood, the incubator enables the operator to preserve embryos under optimum culture conditions (temperature, humidity, gases, etc.) during all operations which require handling.

The gas mixture apparatus, used in conjunction with the incubator, feeds carbon dioxide gas to the incubator. The carbon dioxide gas from pressurized cylinders is bubbled through heated water in the apparatus, thereby heating the gas to 37 degrees celsius. The gas is then fed into the incubator. At the time the gas is fed into the incubator, heated air is fed into the incubator and mixed with the carbon dioxide gas, in a proportion of 5 parts carbon dioxide to 95 parts air. This process provides the proper atmosphere for cell growth.

It is requested that we classify the articles as if they were imported separately and as if they were imported together.

ISSUE:

Are incubators ovens for the purposes of heading 8514, HTSUS, or are they for the treatment of materials as described in heading 8419, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

We will first deal with the classification of the articles as if they were imported separately. In NY 874139, dated June 9, 1992, similar incubators were held to be classifiable under subheading 8514.30.00, HTSUS, which provides for: "[i]ndustrial or laboratory electric (including induction or dielectric) furnaces and ovens; other industrial or laboratory induction or dielectric heating equipment; parts thereof: [o]ther furnaces and ovens."

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, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 85.14(I) (pp. 1352-1353) states that:

[e]lectric furnaces and ovens consist essentially of a more or less closed space or vessel in which a relatively high temperature is obtained. They are used for many purposes (melting, annealing, tempering, welding, heat treatment of welds, etc.). The principal types include retort furnaces, bell-type furnaces, trough furnaces, crucible furnaces, tunnel furnaces, etc. Some of these furnaces may have special tilting attachments, or be provided with an inner vessel for the treatment of metals in a particular gas to prevent oxidation.

The furnaces and ovens described in this heading include, inter alia:

(1) Ovens for bread, pastry or biscuit making.

(2) Dental Ovens.

(3) Crematorium Furnaces.

(4) Furnaces for incinerating waste.

The heading excludes electrically heated apparatus for drying, sterilising or similar operations (heading 8419).

It is our position that the subject incubator is not in the class or kind of articles described under heading 8514, HTSUS, and under Explanatory Note 85.14. The incubator is not a closed space in which a high temperature is obtained. It reaches a maximum temperature of only 104 degrees fahrenheit. The incubator is not used for any of the purposes listed, such as melting, annealing, or tempering. Also, it is not similar to any of the four ovens provided as examples. However, we do find that the incubator is similar to the goods classifiable under heading 8419, HTSUS, articles which are excluded from heading 8514, HTSUS.

Heading 8419, HTSUS, provides for: "[m]achinery, 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; instantaneous or storage water heaters, nonelectric; parts thereof."

In part, Explanatory Note 84.19 (p. 1173) states that:

. . . the heading covers machinery and plant designed to submit materials (solid, liquid or gaseous) 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., heating, cooking, roasting, distilling, rectifying, sterilising, pasteurising, steaming, drying, evaporating, vaporising, condensing or cooling processes).

It is our position that the subject incubator is described under heading 8419, HTSUS. The incubator causes a simple change in temperature which, along with other factors, creates an environment conducive to the growth of the human sperm cells.

Consequently, we find that the incubator is classifiable under subheading 8419.89.50, HTSUS, which provides for: "[o]ther machinery, plant or equipment: [o]ther: [o]ther."

We do note NY 868377, dated November 26, 1991, in which a hybridization incubator was held to be classifiable under heading 8419, HTSUS.

Concerning the classification of the gas mixture apparatus, it is our position that it is classifiable under subheading 8419.50.00, HTSUS, which provides for: "[h]eat exchange units."

In part, Explanatory Note 84.19(I)(B) (p. 1174) states:

[h]eat exchange units in which a hot fluid (hot gas, steam, or hot liquid) and a cold fluid are made to traverse parallel paths, but usually in opposite directions, separated by thin metal walls in such a manner that the one fluid is cooled and the other heated.

We find that the operation of the gas mixture apparatus is similar in effect to the operation described above. In the instant case, cool carbon dioxide from pressurized tanks is passed through heated water, increasing the temperature of the carbon dioxide. In effect, the water is exchanging heat to the carbon dioxide before the gas is introduced into the incubator.

We will now deal with the classification of the two articles when imported together. Section XVI, note 4, HTSUS, states that:

[w]here a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by 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 incubator and the gas mixture apparatus, when imported together, do contribute together to a clearly defined function, that of encouraging human sperm cell growth. The operation of the incubator and the gas mixture apparatus, through temperature change, create an environment conducive to the growth of human sperm cells. Therefore, we conclude that the two articles imported together constitute a functional unit, and that unit is classifiable under subheading 8419.89.50, HTSUS.

HOLDING:

When imported separately, the laboratory incubator is classifiable under subheading 8419.89.50, HTSUS, which provides for: "[m]achinery, 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; instantaneous or storage water heaters, nonelectric; parts thereof: [o]ther machinery, plant or equipment: [o]ther: [o]ther." The general, column one rate of duty is 4.2 percent ad valorem.

When imported separately, the gas mixture apparatus is classifiable under subheading 8419.50.00, HTSUS, which provides for: "[h]eat exchange units." The general, column one rate of duty is 4.2 percent ad valorem.

When the two articles are imported together, they form a functional unit which is classifiable under subheading 8419.89.50, HTSUS.

EFFECT ON OTHER RULINGS

NY 874139 is revoked in full.

Sincerely,

John Durant, Director
Commercial Rulings Division

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