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May 12, 1999

CLA-2-90:RR:NC:MM:105 E81197

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.19.0000

Mr. Michael Mazzarella
Oxford Instruments America, Inc.
130A Baker Avenue Extension
Concord, MA 01742

RE: The tariff classification of an X-ray Fluorescence Apparatus from the United Kingdom

Dear Mr. Mazzarella:

In your letter, dated April 16, 1999, for Oxford Instruments America, Inc., you requested a tariff classification ruling.

The three imports, for which extensive and thorough documentation, but no samples, were submitted, are the Lab-X 3000 Bench-Top Energy Dispersive X-ray Fluorescence Analyzer, the ED-2000 Energy Dispersive X-ray Fluorescence Multi-Element Spectrometer, and the MDX 1000 Multi-Dispersive X-ray Fluorescence Spectrometer.

Although there are differences among the three, all have an X-ray source which is directed at a sample. The secondary X-rays emitted are detected and analyzed by the device primarily to determine the identity and quantity of the chemical elements present. We have noted your statement that some shipments of the X-ray Spectrometers may include a personal computer which will operate in conjunction with the device. If included it the shipment, we would consider the PC to be part of the functional unit in which the X-ray Spectrometer performs the principal function. See Note 3 to Chapter 90.

Explanatory Note I-C-1 to HS 90.22 indicates that it includes “X-ray spectrometry equipment” used to determine “the chemical composition of materials.” Although HTS 9027.30 provides for spectrometers used in chemical analysis, it is limited to those using optical radiations. Since the imports, in operation, will emit, or in the absence of effective shielding would emit, an electromagnetic radiation, they are considered to be "Electronic Products". See 21 CFR ( the Food and Drug Administration Regulations), Chapter 1, Subchapter J (Radiological Health), Part 1000 (General). Per Custom Regulation 12.91-b, you must file with Customs at the port of entry of any shipments of these imports two copies of a declaration, verified by the
importer of record, on FDA Form FD 2877, concerning the import`s compliance with the FDA requirements. If you need further information concerning the FD 2877 or the FDA requirements, we suggest you contact the FDA, Center for Devices and Radiological Health, 9200 Corporate Boulevard, Rockville, MD 20850. As of August of 1998, its Division of Small Manufacturers Assistance can be telephoned at 301-443-6597.

You have asked about the Tariff status of “dedicated software packages” that might be shipped with these items. We agree that the software will be separately classifiable due to Note 6 to Chapter 85 of the HTS and that its value for Customs purposes will be only the value of the medium, not the value of the content, NYRL B86452, 6-19-97, noted.

The applicable subheading for these three items will be 9022.19.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for apparatus based on the use of X-rays, not for medical, surgical, dental or veterinary uses. The general rate of duty will be free.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Sheridan at 212-637-7037.

Sincerely,

Robert B. Swierupski
Director,
National Commodity

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