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HQ 953401


June 10, 1993

CLA-2 CO:R:C:M 953401 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8419.89.50

Mr. Gerry O'Rourke
Yamato Scientific America, Inc.
33 Corporate Drive
Orangeburg, New York 10962

RE: HRL 952998 affirmed; Laboratory Incubator; NY 874139 revoked; HRL 952810; 8514.30.00; EN 85.14; EN 84.19;

Dear Mr. O'Rourke:

This is in response to your letter dated February 1, 1993, requesting reconsideration of Headquarters Ruling Letter (HRL) 952998 dated December 9, 1992, regarding the tariff classification of incubators under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles under consideration are electrically-heated natural convection incubators for the long term heating of biological samples in laboratories (models IC-43, IC-63 and IC- 83). The samples are warmed from 5 to 60 degrees Centigrade. These closed-chamber incubators are adiabatically insulated to prevent warming the laboratories. Microprocessor control continuously monitors the rate of change of temperature, eliminating temperature overshoot and undershoot.

HRL 952998 classified the incubators under subheading 8419.89.50, 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; instantaneous or storage water heaters, nonelectric; parts thereof... Other machinery, plant or equipment...Other...Other."

Additionally, HRL 952998 revoked New York (NY) 874139 dated June 9, 1992, which had classified the incubators under subheading 8514.30.00, HTSUS, which provides for "Industrial or laboratory electric (including induction or dielectric) furnaces and ovens; other industrial or laboratory induction or dielectric heating equipment; parts thereof...Other furnaces and ovens."

LAW AND ANALYSIS:

HRL 952998 cited HRL 952810 dated December 9, 1992, as precedent for re-classifying the incubators under subheading 8419.89.50, HTSUS. The incubator in HRL 952810 was specifically designed and used for the fertilization of human sperm cells. You state that Yamato's incubators are not designed or intended for one specific use, but are "general purpose" incubators recommended for a wide range of laboratory uses. Therefore, you request that the classification of Yamato's incubators be re- examined.

In this case, it does not matter that Yamato's incubators are different from the incubators in HRL 952810. The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1, HTSUS, 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 headings of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, 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, EN 8514.(I) (pgs. 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 the 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, sterilizing or similar operations (heading 8419).

Yamato's incubators are not of the class or kind of articles described in heading 8514, HTSUS, and in EN 85.14. The incubators may be closed-chamber incubators, but they only reach a maximum temperature of 60 degrees Centigrade (140 degrees Fahrenheit). The incubators are not used for any of the purposes listed, such as melting, annealing, or tempering. Also, they are not similar to any of the four ovens provided as examples. Additionally, the incubators are similar to the goods classifiable under heading 8419, HTSUS, articles which are excluded from heading 8514, HTSUS.

It is our position that the incubators are described under heading 8419, HTSUS. EN 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, sterilizing, pasteurising, steaming, drying, evaporating, vaporising, condensing or cooling processes).

Based on the information provided, the incubators are properly classified under subheading 8419.89.50, HTSUS.

HOLDING:

The incubators are classified under subheading 8419.89.50, HTSUS, which provides for laboratory equipment for the treatment of materials by a process involving a change of temperature.

HRL 952998 is affirmed.

Sincerely,

John Durant, Director

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