CLA-2 OT: RR: CTF: EMAIN: H289239 PF
Michael E. Roll
Pisani & Roll LLP
1875 Century Park East, Suite 600
Los Angeles, CA 90067
RE: Tariff classification of the Gene Pulser™ and MicroPulser™ Cuvette
Dear Mr. Roll:
This is in reply to your letter dated August 9, 2017 to U.S. Customs and Border Protection (“CBP”), Office of Trade, Regulations and Rulings, on behalf of your client Bio-Rad, Inc., (“Bio-Rad”). In your letter, you seek a prospective ruling under the Harmonized Tariff Schedule of the United States (“HTSUS”) regarding the tariff classification of the Gene Pulser™ and MicroPulser™ Cuvette (“Cuvette”). We have taken into consideration information received during an August 8, 2018 meeting and supplemental information received on November 23, 2018.
FACTS:
The merchandise at issue is a cuvette, which is a small tube with a circular or square cross section that is sealed at one end to hold samples for spectroscopic experiments. The cuvettes are made of plastic, contain aluminum electrode plates, and have caps. The cuvettes are used solely with electroporation machines and are specifically designed to work with two models of Bio-Rad electroporation machines: the Gene Pulser™ and the MicroPulser.™ The Gene Pulser™ and MicroPulser™ electroporation machines have specifically designed cuvette chambers, which enable the cuvettes to be inserted directly into the electroporators.
Electroporation is a technique used in microbiology to create pores in cell membranes by applying an electrical field to increase the permeability of the cells and allowing for the introduction of a substance into the cell. Cells are suspended in a liquid and are placed within the cuvette. The cuvette is placed in the electroporator. There are electrical contacts within the electroporator that make contact with the electrodes on the side of the cuvette. The electroporator creates an electro-magnetic field in the cell solution, which allows substances such as chemicals, drugs, or DNA to be introduced into the cells.
ISSUE:
Whether the subject cuvette is classified as a part of an electrical machine and apparatus having an individual function, of heading 8543, HTSUS, or as a part of an instrument and apparatus for analysis of heading 9027, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (“AUSR”). The GRIs and the AUSR are part of the HTSUS, and are considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS headings under consideration are as follows:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.90 Parts:
Other:
Other:
8543.90.88 Other.
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:
9027.90 Microtomes; parts and accessories:
Note 1(m), to Section XVI, HTSUS, which includes Chapter 85, HTSUS, states that Section XVI, HTSUS, does not cover articles of Chapter 90, HTSUS. Note 2 to Section XVI, HTSUS, further provides as follows:
Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
(a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;
Note 2 to Chapter 90, HTSUS, provides as follows:
Subject to Note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
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 8487, 8548 or 9033) are in all cases to be classified in their respective headings;
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 heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind.
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 HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127 (August 23, 1989).
The Explanatory Note to heading 85.43 provides, in pertinent part, as follows:
The electrical appliances and apparatus of this heading must have individual functions. The introductory provision of Explanatory Note to heading 84.79 concerning machines and mechanical appliances having individual functions apply, mutatis mutandis, to the appliances and apparatus of this heading.
The Explanatory Note to heading 84.79 provides, in relevant part, as follows:
For this purpose the following are to be regarded as having “individual functions”:
Mechanical devices, with or without motors or other driving force, whose function
can be performed distinctly from and independently of any other machine or appliance.
The Explanatory Note to heading 90.27, provides, in pertinent part:
(23) Electrophoresis instruments. These are based on the change in concentration occurring when a direct current is passed through a solution. The electrically charged particles migrate at different speeds according to the nature of the product.
These instruments usually incorporate a photometric device consisting of a photoelectric cell and a milliammeter graduated directly in units of optical density. They are used for analysing various solutions (proteins, amino acids, etc.), for examining substances such as plasma, hormones, enzymes, viruses, etc., and for studying polymerisation phenomena.
Because Note 1(m) to Section XVI (Chapter 85), HTSUS, specifically exclude articles of Chapter 90 from classification in that Section, our analysis of the classification of the cuvettes begins with heading 9027, HTSUS. We also note that neither Note 2(a) to Section XVI, HTSUS nor Note 2(a) to Chapter 90, HTSUS, apply because the cuvettes are not classifiable under their own HTSUS heading. Instead, the classification of the cuvettes will be determined by evaluating the classification of the Pulser™ and the MicroPulser™ electroporation machines, in which the cuvettes are incorporated, pursuant to Note 2(b) to Section XVI, HTSUS, and Note 2(b) to Chapter 90, HTSUS.
Bio Rad maintains that the Pulser™ and the MicroPulser™ electroporation machines, in which the cuvettes are used, are classified in heading, 9027, HTSUS because they are instruments for physical analysis of cells. Bio Rad further maintains that the cuvettes are classified in heading, 9027, HTSUS, as “parts” of the Gene Pulser™ and the MicroPulser™ electroporation machines. Heading 9027, HTSUS, provides in pertinent part for “Instruments and apparatus for physical or chemical analysis. . .parts and accessories thereof.”
The Court of International Trade has stated that the phrase “instruments and apparatus for physical and chemical analysis” describes articles that are chiefly used to perform a physical or chemical determination of the quantity, quantities, or composition of a substance. Pharmacia Fine Chemicals, Inc. v. United States, 9 C.I.T. 438, 441 (1985). In addition, CBP has explained that heading 9027, HTSUS, is limited to devices that measure a substance or force, or interpret or analyze the measured data. See Headquarters Ruling (“HQ”) 955445 dated January 19, 1994, which classified a particle spectrometer under heading 9031, HTSUS. In HQ 955445, the classification of the particle spectrometer under heading 9027, HTSUS, was determined to be inappropriate because the instrument measured the size, distribution and shape of the particles without performing any actual analysis of the particles.
The product literature confirms that the Gene Pulser™ and the MicroPulser™ electroporation machines do not perform or facilitate a physical determination of the quantity, qualities or composition of a substance. Instead, the Gene Pulser™ and the MicroPulser™ electroporation machines are limited to delivering calibrated electrical pulses to cell samples contained within the cuvettes. The electrical pulses increase the size of the pores in the cell membranes and allow for the introduction of other substances, but the Gene Pulser™ and the MicroPulser™ electroporation machines do not analyze the cellular matter contained in the cuvette. Therefore, the Gene Pulser™ and the MicroPulser™ electroporation machines do not perform a “physical analysis” and cannot be classified as an article of heading, 9027, HTSUS.
Bio-Rad further maintains that electroporation machines are similar to electrophoresis machines and therefore should be classified in heading 9027, HTSUS. Electrophoresis is a process where molecules separated for experimentation (such as nucleic acids and proteins) are driven by an electrical charge from a gel matrix onto the surface of a membrane filter where they are easily accessible. EN 9027(23) also provides that electrophoresis instruments:
. . . usually incorporate a photometric device consisting of a photoelectric cell and a milliammeter graduated directly in units of optical density. They are used for analysing various solutions (proteins, amino acids, etc.), for examining substances such as plasma, hormones, enzymes, viruses, etc., and for studying polymerisation phenomena.
Electroporation, on the other hand, uses electric current to make cell membranes more permeable to large molecules. The Gene Pulser™ and the MicroPulser™ electroporation machines do not separate molecules nor do they incorporate a device used for analysis, such as a photometric device. Any analysis of cellular material that has undergone electroporation involves another instrument. As a result, electrophoresis machines and electroporation machines are two distinct and different instruments. For these reasons, Bio-Rad’s reliance on HQ 082462, dated November 13, 1989, where we classified electrophoresis equipment in heading 9027, HTSUS is not applicable to the instant case.
We next consider whether the Gene Pulser™ and the MicroPulser™ electroporation machines are classifiable under heading 8543, HTSUS. Heading 8543, HTSUS, provides for “electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof.” The electroporator machine is an “electrical apparatus.” See Whirlpool Corp. v. United States, 505 F. Supp. 2d 1358, 1362, 31 C.I.T. 1147, 1150 (2007) (defining the term “apparatus” as “a group of devices, or a collection or set of materials, instruments or appliances to be used for a particular purpose or a given end.”). The definition of “individual functions” is contained in the EN to Heading 84.79, which provides that the following are to be regarded as having “individual functions”: “(A) Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.” In the instant case, the function of the Gene Pulser™ and the MicroPulser™ electroporation machines is to deliver calibrated electrical pulses to cell samples to increase their permeability. The Gene Pulser™ and the MicroPulser™ electroporation machines can deliver these electrical pulses distinctly and independently of any other machine. As a result, the Gene Pulser™ and the MicroPulser™ electroporation machines have individual functions and are properly classified in heading 8543, HTSUS.
The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
The product literature and your ruling request indicates that the cuvettes are used solely with electroporation machines, including the Gene Pulser™ and the MicroPulser™ electroporation machines. The product literature also indicates that electroporation results require high-quality electroporation cuvettes to function. The cuvettes hold a liquid cell suspension and facilitate the delivery of an electrical field from the electroporator by means of inbuilt electrodes. The electroporator does not have the ability to effectively create an electro-magnetic field without the presence of the cuvettes and therefore, the cuvettes are integral to the operation of the electroporator.
The Gene Pulser™ Electroporator is described as having a ShockPod™ cuvette chamber. One of the key features of the MicroPulser™ Electroporator, is an “attached cuvette chamber,” which enables the cuvette to be inserted into the MicroPulser™ Electroporator. As a result, the cuvettes are designed to fit within the electroporation machines. Without the cuvettes, electroporation machines such as the Gene Pulser™ and the MicroPulser™ could not function. Consequently, because the cuvettes are dedicated for use solely with electroporation machines, are designed to be inserted into the Gene Pulser™ and MicroPulser™ electroporation machines, and could not function without the cuvettes, we find that the cuvettes are a “part” of the electroporation machines under either the Willoughby or Pompeo test. Therefore, the cuvettes are properly classified in subheading 8543.90.88, as “parts” of an “electrical machine and apparatus.”
Our decision is consistent with CBP’s prior treatment of cuvettes. In New York Ruling Letter (“NY”) N211279, dated April 19, 2012, CBP determined that electroporation cuvettes were classified in subheading 8543.90.8880, HTSUS, as “Electrical machine and apparatus. . . .: Parts: Other: Other: Other: Other.” The cuvettes at issue in NY N211279 were used in conjunction with an electroporator. Similar to the Gene Pulser™ and the MicroPulser™ electroporation machines in the instant case, the electroporator in NY N211279 was designed to create an electro-magnetic field in the cell solution, which allowed substances, to be introduced into the cells.
HOLDING:
By application of GRIs 1 (Note 2(b) to Section XVI) and 6, the subject cuvette is classified in heading 8543, HTSUS, and specifically in subheading 8543.90.88, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Parts: Other: Other: Other. The 2018 column one, general rate of duty for merchandise of this subheading is 1.3% ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and the accompany duty rates are provided at www.usitc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gregory Connor, Branch Chief
Electronics, Machinery, Automotive, and International Nomenclature Branch