HQ 962625

May 25, 1999

CLA-2 RR:CR:GC 962625 HMC

CATEGORY: Classification

TARIFF NO.: 9027.80.25

Port Director of Customs

10 Causeway St., Ste. 603

Boston, MA 02222-1059

RE: Protest 0401-98-100218; Cryostat; Other Instruments and Apparatus
for Chemical Analysis; Nuclear Magnetic Resonance Instruments

Dear Port Director:

This is our decision on Protest 0401-98-100218, filed against your
classification under the Harmonized Tariff Schedule of the United States
(HTSUS), of a cryostat. The entry under protest was made in 1997 and
liquidated on June 5, 1998, and this protest timely filed on September
2, 1998. In preparing this decision, consideration was given to a
supplemental submission by counsel on behalf of the protestant, dated
May 12, 1999, as well as arguments presented at a meeting on April 6,
1999.

FACTS:

The merchandise under protest is a cryostat that consists of various
components, including an electromagnetic device, superconducting shims,
a radiation baffle, manifold, shorting plug, blowout tube, dipstick,
vessel base insulation pads, helium pressure relief valve, various
washers, screws, "O" rings and cryostat legs. The cryostat outer casing
is made of steel and copper and resembles a water heater tank. The
interior contains chambers, which include vacuum chambers and
compartments filled with liquid helium and liquid nitrogen. The helium
compartment surrounds the electromagnetic device which is imbedded at
the center of the cryostat. Surrounded by the electromagnetic device, at
the core of the cryostat, is a bore or cavity into which a chemical
sample is inserted inside a probe. The chambers in the cryostat are
precisely arranged to provide the requisite temperature for
superconductivity of the electromagnetic component. The electromagnetic
device is made of niobium titanium and niobium tin wires that create a
uniform and homogeneous (without fluctuation) electromagnetic field.

Counsel for the protestant states that the cryostat is exclusively
designed to perform nuclear magnetic resonance (NMR) spectroscopy. NMR
spectroscopy is a highly developed technology, which enables a scientist
to analyze the molecular structure of chemical samples through the
combination of an almost perfect homogenous magnetic field and the radio
frequency absorption properties of individual nuclei in the sample.

After importation, the cryostat is connected to a radio frequency
transmitter and a computer, which operates a specially-designed NMR
software. In order to conduct a spectrometry analysis of a chemical
sample, the cryostat's temperature is set at approximately 4 degrees
Kelvin (minus 269 degrees centigrade), and an initial electrical current
is fed by the power supply to the electromagnetic device within the
cryostat, generating an electromagnetic field. The sample is placed
within the probe and inserted inside the cryostat. The transmitter
generates short pulses of radio frequency energy, controls the amplitude
of these pulses as they are sent to the probe, and converts the analogue
audio frequency signal emitted during the NMR analysis back to a digital
signal for use by the computer. The computer stores the NMR data and
converts it (using the software) into a readable format.

The merchandise was entered and liquidated under a provision for
electromagnets under subheading 8505.90.80, HTSUS, pursuant to New York
Ruling Letter (NY) C86387, dated May 1, 1998. Protestant claims that the
merchandise is not an electromagnet but a nuclear magnetic resonance
instrument of subheading 9027.80.25, HTSUS.

The 1997 provisions under consideration are as follows:

> 8418 Refrigerators, freezers and other refrigerating or freezing
> equipment, electric or other; heat pumps, other than the air
> conditioning machines of heading 8415; parts thereof:
>
> Other refrigerating or freezing equipment; heat pumps:
>
> 8418.69.00 Other\...1.2%

\* \* \* \*

> 8505 Electromagnets; permanent magnets and articles intended to become
> permanent magnets after magnetization; electromagnetic or permanent
> magnet chucks; clamps and similar holding devices; electromagnetic
> couplings, clutches and brakes; electromagnetic lifting heads; parts
> thereof:

8505.90 Other, including parts:

8505.90.80 Other\...2.3%

\* \* \* \*

> 9027 Instruments and apparatus for physical or chemical analysis (for
> example, polarimeters, refractometers, spectrometers, gas or smoke
> analysis apparatus); 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:
>
> 9027.80 Other instruments and apparatus:
>
> 9027.80.25 Nuclear magnetic resonance instruments\...Free
>
> Other:
>
> 9027.80.45 Electrical\...Free
>
> 9027.90 Microtomes; parts and accessories:
>
> Parts and accessories:
>
> Of electrical instruments and apparatus:
>
> Other:
>
> 9027.90.54 Of instruments and apparatus of subheading 9027.20,
> 9027.30, 9027.40, 9027.50 or 9027.80\...Free

ISSUE:

Whether the cryostat is classifiable as an unfinished nuclear magnetic
resonance instrument under subheading 9027.80.25, HTSUS, or as an
electromagnet under subheading 8505.90.80, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part that for
legal purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes, and
provided the headings or notes do not require otherwise, according to
GRIs 2 through 6.

Protestant claims that the cryostat is an unfinished NMR device
classifiable as a NMR instrument under subheading 9027.80.25, HTSUS.
Alternatively, protestant argues the cryostat is classifiable under
subheading 9027.90.54, HTSUS, as a part of a NMR instrument or under
subheading 8418.69.00, HTSUS, as other refrigerating or freezing
equipment, and that it is not an electromagnet of heading 8505, HTSUS.

GRI 2(a) states that any reference in a heading to an article shall be
taken to include a reference to that article incomplete or unfinished,
provided that, as entered, the incomplete or unfinished article has the
essential character of the complete or finished article. It shall also
include a reference to that article complete or finished (or falling to
be classified as complete or finished by virtue of this rule), entered
unassembled or disassembled.

Section XVI, Note 1(m), HTSUS, states that this section (which includes
Chapters 84 and 85) does not cover articles of Chapter 90. If the
cryostat is a good described by a heading of Chapter 90, it cannot be
classified in a heading of Chapter 84 or 85.

Chapter 90, Note 3, HTSUS, states that the provisions of Note 4 to
Section XVI apply to this chapter. Note 4, Section XVI, 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 cryostat with two other components, a radio frequency transmitter
and a computer that operates a specially-designed NMR software, make up
a nuclear magnetic resonance (NMR) instrument, which is among the
instruments and apparatus for physical and chemical analysis of heading
9027, HTSUS. The evidence shows that the three machines are
interdependent on each other and could not produce results independently
of one another. All three machines, if imported together, would be
classifiable as nuclear magnetic resonance instruments under subheading
9027.80.25, HTSUS. We note however that the cryostat is not imported
with the other two components that make up the NMR system.

It is a well established principle that an imported article is to be
classified according to its condition as imported. Customs has
consistently held that individual components of a functional unit must
be imported together. They cannot be classified as unfinished functional
units or parts of functional units. *See* HQ 957150, dated January 30,
1995, and HQ 950218, dated April 17, 1992. The fact that several
machines, if imported together, would be classified under a single
heading as a functional unit does not mean that the same should hold
true if they are imported separately. When imported separately, the
machines must be individually classified. In this instance, we find that
the cryostat, imported by itself, must be individually classified.
Accordingly, we must determine which heading describes the subject
merchandise in its imported condition.

Heading 9027, HTSUS, provides in pertinent part for "\[i\]nstruments and
apparatus for physical or chemical analysis (for example polarimeters,
refractometer, spectrometers, gas or smoke analysis apparatus)." In HQ
089800, dated September 13, 1991, Customs held that heading 9027 is a
use provision. Additional U.S. Rule of Interpretation 1(a), HTSUS,
states that in the absence of special language or context which
otherwise requires, a tariff classification controlled by use (other
than actual use) is to be determined in accordance with the use in the
United States at, or immediately prior to, the date of importation, of
goods of that class or kind to which the imported goods belong, and the
controlling use is the principal use. In HQ 089800, Customs noted that
the phrase "instruments and apparatus for physical and chemical
analysis" described articles used to facilitate physical or chemical
determination of the quantity, qualities, or composition of a substance.

It is Customs view that the cryostat is described by heading 9027
because the evidence shows it is principally used to conduct chemical
analysis. In his submission, counsel for the protestant states that the
cryostat is exclusively designed to perform nuclear magnetic resonance
(NMR) spectroscopy. Counsel further states that NMR spectroscopy is a
highly developed technology, which enables a scientist to analyze the
molecular structure of chemical samples.

Citing HQ 957284, dated December 7, 1994, counsel argues that the
cryostat is classifiable as an unfinished NMR instrument because it has
the essential character of such instrument. In general, essential
character has been construed to mean that attribute which strongly marks
or serves to distinguish what an article is; that which is indispensable
to the structure, core or condition of the article. In addition, the ENs
state that the factors which help determine essential character will
vary as between different kinds of goods. It may, for example, be
determined by the nature of the material or component, its bulk,
quantity, weight or value, or by the role of a constituent material in
relation to the use of the goods.

Based on the evidence presented, we find that the cryostat imparts the
essential character of a finished NMR instrument. Similar to the
merchandise of HQ 957284, the cryostat is the operative instrument for
performing NMR analysis and it is dedicated for such use (i.e., its
"architecture" is unique to NMR analysis). It thus performs the primary
role in relation to the use of the finished NMR instrument. The cryostat
is therefore classifiable under subheading 9027.80.25, HTSUS, as nuclear
magnetic resonance instruments. Since the merchandise is described by
heading 9027, it is precluded from classification under subheading
8418.69.00, or subheading 8505.90.80, pursuant to Note 1(m), Section
XVI, HTSUS.

HOLDING:

The cryostat is classifiable under subheading 9027.80.25, HTSUS, as
"Other instruments and apparatus: Nuclear magnetic resonance
instruments."

This protest should be ALLOWED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the Protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division