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HQ 966939




March 7, 2005

CLA-2 RR:CR:GC 966939 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8539.49.0040

Steve Handy
Agilent Technologies, Inc.
395 Page Mill Rd, MS A2-04A
Palo Alto, CA 94303-0870

RE: Deuterium Lamp; Reconsideration of NY J89735, AFFIRMED

Dear Mr. Handy:

This is in reference to your letter of December 1, 2003, requesting a reconsideration of New York Ruling Letter (NY) J89735, issued to you by the Customs National Commodity Specialist Division, New York, on November 7, 2003. That ruling concerned the classification of a deuterium lamp under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In preparing this ruling, we also considered arguments provided in a teleconference held on June 30, 2004, and additional information you submitted by facsimile, dated July 12, 2004.

FACTS:

NY J89735 concerned a deuterium lamp imported by Agilent Technologies, Inc. The deuterium lamp is intended to be used in Agilent’s 1100 Series High Performance Liquid Chromatograph (HPLC). The deuterium lamp provides the source of ultraviolet light for the HPLC. The deuterium lamp consists of an anode and cathode in a glass envelope filled with low-pressure deuterium gas. The glass envelope also contains special subassemblies, an aperture and alignment components, that allow the product to function within the HPLC. There is a special coating on the ultraviolet lamp’s cathode which you state increases the lifetime of the lamp and also results in a more consistent lamp-to-lamp voltage and signal and more sensitivity. In materials submitted from your web site, you state in Separation Times, Vol. 16, No. 1 (2003) that:

Agilent longlife deuterium lamps are aligned precisely during the manufacturing process. A computer controls positions and permanently secures the glass bulb of the lamp into the aluminum mounting-ring, thereby creating a pre-aligned product for the Agilent 1100 HPLC instrument. The PerfectFit final product is not only optimized for performance, but the lamp is easier to handle during both installation and removal.

In material from your website describing “Agilent Series 1100 UV-Visible Detectors”, on page 6 concerning maintenance, it discusses replacement of the lamp, stating that the lamp is “[p]realigned for fast error-free exchange, the lamp is easy to install from the front.” Software in the device can also inform the user of the amount of “burn-time” the lamp has undergone.

In NY J89735, Customs and Border Protection (“CBP”) determined that the deuterium lamp was classified in subheading 8539.49.0040, HTSUSA, which provides for: “Electrical filament or discharge lamps, including sealed beam lamp units and ultraviolet or infrared lamps; arc lamps; parts thereof: Ultraviolet or infrared lamps; arc lamps: Other; Ultraviolet lamps.

ISSUE:

What is the classification of the subject deuterium lamp under the HTSUSA?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, merchandise is classifiable according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In interpreting the headings and subheadings, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding or dispositive, they provide a commentary on the scope of each heading of the HTSUSA. It is CBP practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

8539 Electrical filament or discharge lamps, including sealed beam lamp units and ultraviolet or infrared lamps; arc lamps; parts thereof:

Ultraviolet or infrared lamps; arc lamps:

8539.49.00 Other

8539.49.0040 Ultraviolet lamps

9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis aparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound, or light (including exposure meters); microtomes; parts and accessories thereof:

Microtomes; parts and accessories:

Parts and accessories:

Of electrical instruments and apparatus:

Other:

Of instruments and apparatus of subheading 9027.20, 9027.30, 9027.40, 9027.50 or 9027.80

9027.90.5425 Of articles of subheading 9027.20.50

The article at issue is a deuterium ultraviolet lamp. The deuterium lamp is intended to be used with Agilent’s 1100 Series HPLC. The deuterium lamp is a self contained unit, totally enclosed within its own glass envelope. The deuterium lamp is repeatedly discussed in Agilent’s materials for its own special features, including an entire article just on the deuterium lamp in Agilent’s Separation Times. The deuterium lamp over time wears out and, as its own unique unit, is designed to be easily replaceable in the HPLC device. The HPLC device is programmed to track and distinguish the use time of the deuterium lamp from the use the HPLC. Therefore, the deuterium lamp retains its own identity even though inserted into Agilent’s HPLC device.

CBP has held that the deuterium lamp is classified in heading 8539, as an ultraviolet lamp. The ENs for heading 8539 describe “ultra-violet lamps” as:
used for medical, laboratory, germicidal or other purposes. They usually consist of a fused quartz tube containing mercury; they are sometimes enclosed in an outer envelope of glass. Some are known as black light lamps (e.g., those used for theatrical purposes).

The instant deuterium lamp clearly falls within this description of an ultraviolet lamp. We note that you claim that there are some additional components in the deuterium lamp that make it “more than a bulb.” You claim that the deuterium lamp “contains components that are not normally seen in lamps, and which devote it exclusively to a chromatograph.” By this, you may be referring to what you describe as special subassemblies of aperture and alignment components. However, the “more than” doctrine was a concept applicable under the Tariff Schedules of the United States (TSUS), the predecessor to the current HTSUSA, and is no longer a valid concept under HTSUSA. See JVC Co. of America v. United States, 234 F.3d 1348, 1353-54 (Fed. Cir. 2000) (citing Nidec Corp. v. United States, 68 F.3d 1333, 1337 (Fed. Cir. 1995); HQ 955107 (January 11, 1994).

However, the deuterium lamp is used in Agilent’s HPLC device. You argue that the deuterium lamp should be considered as only a part of the HPLC device and, therefore, be covered under the HPLC device’s classification, which is in chapter 90, HTSUSA. You cite Note 2(b) to chapter 90 to support this position.

Note 2(a) to chapter 90 states:

Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings;

Note 2(b) to chapter 90 states:

Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013, or 9031) are to be classified with the machines, instruments or apparatus of that kind;

See also similar language in the Section Notes for headings 8539 at Section XVI Note 2(a) and (b). The ENs for Section XVI at General, (II) Parts (Section Note 2), states that “parts which in themselves constitute an article covered by a heading of this Section; these are in all cases classified in their own appropriate heading even if specially designed to work as part of a specific machine.” The EN then specifically lists at (14) Lamps of heading 85.39. The ENs for chapter 90 at General, (III) Parts and Accessories (Chapter Note 2), (1), gives similar guidance, stating that “[f]or example, lamps remain in Chapter 85.” Applying Note 2(a), to the instant deuterium lamp will classify the article in its own right, not as a part or accessory.

The EN language for Section XVI Note 2 was cited by the court in Nidec Corp. v. United States, 861 F. Supp. 136 (CIT 1994), aff’d. 68 F.3d 1333 (Fed. Cir. 1995). The court, applying the EN for Section XVI Note 2, determined that if a good can be classified in its own heading in accordance with Legal Note 2(a), then classification as a part under Legal Note 2(b) is inappropriate. See also HQ 962946 (May 1, 2000), HQ 952026 (July 23, 1992), HQ 963219 (February 5, 2001). Therefore, applying the court’s reasoning to the instant deuterium lamp, we apply Note 2(a) to chapter 90, which directs classification of the article in its own appropriate heading, heading 8539, HTSUSA, and not as a part or accessory. CBP recently followed this reasoning in another case involving deuterium lamps. See HQ 966939 (September 27, 2004), published in the Customs Bulletin, Vol. 38, No. 42 (October 13, 2004).

In this case, as discussed above, Agilent’s deuterium lamp is classified pursuant to chapter 90, Note 2(a) in heading 8539, HTSUSA, as lamps. Therefore, classification as parts of instruments and apparatus for physical or chemical analysis ; for measuring or checking viscosity, porosity, expansion, surface tension or the like; quantities of heat, sound, or light (including exposure meters); microtomes; under chapter 90, Note 2(b) is precluded.

HOLDING:

The deuterium ultraviolet lamp intended for use in Agilent 1100 Series HPLC is classified in subheading 8539.49.0040, HTSUSA, as “[e]lectrical filament or discharge lamps, including sealed beam lamp units and ultraviolet or infrared lamps; arc lamps; parts thereof; Ultraviolet or infrared lamps; arc lamps; Other; Ultraviolet lamps.” The 2005 column one, general rate of duty rate is 2.4% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY J89735 dated November 7, 2003, is AFFIRMED.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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