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HQ 965900




NOVEMBER 22, 2002

CLA-2 RR:CR:GC 965900 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.20.50

Susan Kohn Ross
Rodriguez, O’Donnell, Ross, Fuest, Gonzales & Williams Attorneys at Law
5777 W. Century Blvd., Suite 520
Los Angeles, CA 90045-5659

RE: ABI Prism 3100 Genetic Analyzer; NY G86132 Modified

Dear Ms. Ross:

In NY G86132, which the Director of Customs National Commodity Specialist Division, New York, issued on January 26, 2001, on behalf of Applied Biosystems, the ABI Prism 3100 Genetic Analyzer (the Analyzer) was held to be classifiable in a provision of heading 9027, Harmonized Tariff Schedule of the United States (HTSUS), as electrical instruments and apparatus for measuring or checking quantities of heat, sound or light using optical radiations.

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 G86132 was published on October 9, 2002, in the Customs Bulletin, Volume 36, Number 41. Three comments were received in response to that notice, including one from you. We have thoroughly reviewed the classification set forth in NY G86132 and now believe that although the heading is correct, the subheading must be changed.

FACTS:

The Analyzer is identified in NY G86132 as a DNA sequencing machine. More specifically, it is a fluorescence-based DNA analysis system using the technologies of capillary electrophoresis and laser fluorescence with CCD recording technology to analyze genetic material. After importation, the ABI is combined with a computer workstation running proprietary analysis software that performs sequencing analysis.

The Analyzer contains an electrophoresis instrument, a laser system and a so-called smart camera with changed coupled device (CCD) technology. The electrophoresis instrument sorts (by size sample) DNA that has been treated with a chemical dye. The laser causes the reporter dye to fluoresce so that analysis of the separated genetic information can be measured from the light intensity of the fluorescent dye. The CCD camera digitizes the fluoresced strands of DNA so that the digitized information can be analyzed using the computer and the proprietary software. Included in the Analyzer is a high voltage power supply to generate the direct current electric field necessary for electrophoretic separation. As imported, the Analyzer lacks the computer workstation and proprietary software.

The HTSUS provisions under consideration are as follows:

[i]nstruments and apparatus for measuring or checking quantities of heat, sound or light

9027.20 Chromatographs and electrophoresis instruments:

9027.20.50 Electrical

9027.50 Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared)

9027.50.40 Electrical

9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in [chapter 90]

Other optical instruments and appliances:

Other

9031.49.90 Other

ISSUE:

Whether the Analyzer is an electrophoresis instrument of heading 9027.

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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

We agree that if the goods are found to be described by heading 9027 then, by its terms, heading 9031 does not apply. You offer the following in support of classifying the Analyzer in subheading 9027.20.50, HTSUS, as an electrophoresis instrument: Customs proposed revocation of NY G86132 was based on the erroneous premise that it was classifiable as an instrument and apparatus for measuring or checking quantities of light, language which appears in heading 9027 but which does not describe the Analyzer; the good is not surface testing apparatus of heading 9027; the Analyzer is used to perform, by physical means, a chemical analysis of genetic material using the medium of light. It performs capillary electrophoresis which represents a technological improvement upon but remains substantially identical in operation to electrophoresis instruments described in the 9027 ENs as incorporating a photometric device and which operate, in part at least, by passing a direct current through a solution; the optical instrumentation in the form of a light-producing argon laser is the means by which the computer compares the results with existing data; the Analyzer falls within a class or kind of instruments principally used for physical or chemical analysis, as described in the 9027 heading text in that it is the separation by capillary electrophoresis that constitutes the analysis; and finally, classification in heading 9031, HTSUS, is not appropriate, as the goods are specified and included elsewhere, i.e., in heading 9027.

Initially, Note 4 to Section XVI applies to goods of Chapter 90, pursuant to Chapter 90, Note 3, HTSUS. In this regard, Section XVI, Note 4, HTSUS, states, in relevant part, that machines including a combination of machines, consisting 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. It appears that the Analyzer, imported without the computer workstation and software, constitutes an incomplete or unfinished functional unit, with the imported components imparting to the whole the essential character of a good of heading 9027. See HQ 965638, dated July 16, 2002, and related cases.

Electrophoresis instruments of heading 9027 function essentially to separate or change the concentration of materials in solution for the purpose of analyzing the material. Noting the relevant 9027 ENs, essential features of these instruments include a source of direct current, a photometric device with photoelectric cell and an amp-measuring device or milliammeter, the whole being used for examining/analyzing material in solution. Simply stated, the Analyzer appears to function in substantially the same manner by using a laser light medium to measure variations and intensity of light in the florescent die for the purpose of analyzing the separated genetic material. It operates by capillary electrophoresis which can be regarded as a technological advancement over traditional electrophoresis, but the essential character of the apparatus and its end use remain the same. The Analyzer performs substantially in the manner of an electrophoresis instrument classifiable in heading 9027, HTSUS.

HOLDING:

Under the authority of GRI 1 and Section XVI, Note 4, HTSUS, Section XVI, Note 4, HTSUS, the ABI Prism 3100 Genetic Analyzer is provided for in heading 9027. It is classifiable in subheading 9027.20.50, HTSUS, as an electrophoresis instrument, electrical. NY G86132, dated January 26, 2001, is modified to reflect this classification.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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