CLA-2 CO:R:C:M 088025 AJS
Mr. D. J. Anderson
Vice President, International
LECO Corporation
3000 Lakeview Avenue
St. Joseph, MI 49085-2396
RE: Image Analysis System; Heading 9027; Pharmacia Fine
Chemicals, Inc. v. United States; physical and chemical analysis;
H. Rep. No. 100-576; Additional U.S. Rule of Interpretation 1(a);
Heading 9031; Webster's Third New International Dictionary;
Subheading 9031.40.00; measuring or checking instruments; United
States v. Corning Glass Works; measure; Chapter 90, Additional
U.S. Note 3; optical.
Dear Mr. Anderson:
Your letter of August 27, 1990, requesting a tariff
classification of the LECO-2001 Image Analysis System has been
forwarded to this office for reply.
FACTS:
The article in question is the Leco 2001 Image Analysis
System (LIAS) which is designed to analyze an image. The LIAS
generally is used with microscopes (i.e., inverted, upright and
scanning electron), but it can also be used with a macro viewer
or photomicrograph. When a sample is placed under a microscope,
the image from the microscope is captured by a charged coupled
device (CCD) camera and transferred to the viewing screen of a
monitor. From the monitor the various phases or components to be
measured are separated, measured and reported.
The LIAS has a wide variety of applications in such fields
as metallurgy, biology, mineralogy, geology, composite materials,
ceramics and electronics. It can be used for grain size
measurement in steel, nodule count and roundness measurement in
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iron, length and width measurement of inclusions in steel,
particle size distribution of carbides in tool steel. In
biology, the LIAS can be used for radiograph intensity
measurement and nerve cell area measurement. In composite
materials, it can measure the area and diameter of resins and
fibers. In electronics, it can be used for the measurement of
plating thickness of electronic components. In mineralogy, the
LIAS can be used for the separation of liberated and locked
phases. In botany, it can measure the shape of pollens.
The LIAS is also used to measure the quantity, size and
distribution of particles in materials; the cell count in blood,
which refers to the quantity and size of red and white blood
cells, and the size of the nucleus of the cells; and the number,
size, and distribution of holes in iron.
ISSUE:
Whether the LIAS is properly classifiable within heading
9027, Harmonized Tariff Schedule of the United States (HTSUSA),
which provides for "[i]nstrument and apparatus for physical or
chemical analysis . . . , for measuring or checking viscosity,
porosity, expansion, surface tension or the like . . ."; or
classifiable within heading 9031, HTSUSA, which provides for
"[m]easuring or checking instruments, appliances and machines,
not specified or included elsewhere in this chapter."
LAW AND ANALYSIS:
Heading 9027, HTSUSA, provides for "[instruments and
apparatus for physical or chemical analysis (for example,
polarimeters, refractometers, spectrometers, gas or smoke
analysis apparatus)." It is argued that the LIAS satisfies the
terms of this heading because it is used for the "physical
analysis" of materials. The term "physical analysis" is not
defined within this heading. However, the examples cited of
apparatus for "physical and chemical analysis" include such
devices as polarimeters (which measure the angle through which
the plane of polarization of a ray of light is rotated),
refractometers (which determine the refractive index of liquids
or solids), and spectrometers (which measure the wave-lengths of
emission and absorption spectra). The LIAS does not perform
these type of functions. Instead, it measures the size, shape,
distribution, length, width or similar aspects of materials.
Accordingly, The LIAS does not perform "physical analysis" within
the meaning of heading 9027, HTSUSA.
The Court of International Trade (CIT) has stated that the
phrase "instruments and apparatus for physical and chemical
analysis" describes articles that are chiefly used to perform or
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facilitate physical or chemical determination of the quantity,
qualities, or composition of a substance. Pharmacia Fine
Chemicals, Inc. v. United States, 9 CIT 438, 441 (1985).
Polarimeters, refractometers and spectrometers all satisfy this
description. However, the LIAS is not used to perform or
facilitate the physical determination of the quantity, qualities
or composition of a substance. Instead, it is used to measure
such amounts as the size of particles in powder, number of blood
cells, grain size in steel, and length and width measurements of
inclusions in steel. Therefore, the LIAS does not satisfy the
CIT's description of the term "physical analysis".
Congress has indicated that earlier tariff decisions must
not be disregarded in applying the HTSUSA. The conference report
to the Omnibus Trade Bill of 1988, states that "on a case-by-case
basis prior decisions should be considered instructive in
interpreting the HTS[USA], particularly where the nomenclature
previously interpreted in those decisions remain unchanged and no
dissimilar interpretation is required by the text of the
HTS[USA]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550
(1988). This situation exists in the present case. The
nomenclature involved in Pharmacia and in heading 9027, HTSUSA,
both contain the phrase "instruments and apparatus for physical
and chemical analysis". In addition, the HTSUSA does not define
the term "physical and chemical analysis" nor refute the
interpretation of this phrase rendered under the TSUS.
Therefore, we find the description of the phrase "physical and
chemical analysis" rendered in Pharmacia instructive in this
instance.
Heading 9027, HTSUSA, additionally provides for instruments
and apparatus for measuring or checking porosity. The LIAS can
be used for measuring the distribution of holes in iron (i.e.,
porosity). However, this is only one of the many measuring uses
of the LIAS. Heading 9027, HTSUSA, is a use provision. A tariff
classification controlled by use (other than actual use) is
governed by principal use. Additional U.S. Rule of
Interpretation 1(a). The principal use of the LIAS is not for
measuring the porosity of iron. Therefore, the LIAS is also not
properly classifiable within this portion of heading 9027,
HTSUSA.
Heading 9031, HTSUSA, provides for measuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter. The phrase "measuring or checking" is
not defined by the HTSUSA. However, the Court of Customs and
Patent Appeals (CCPA), the forerunner of the Court of Appeals for
the Federal Circuit, has referred to Webster's Third New
International Dictionary to ascertain the common meaning of
"measuring or checking". United States v. Corning Glass Works,
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586 F.2d 822, 825 (1978). The term "measure" is described as
"[t]o ascertain the quantity, mass, extent, or degree of in
terms of a standard unit or fixed amount . . . measure the
dimensions of: take the measurement of . . . to compute the size
of (an area, object) from dimensional measurements." Webster's
Third New International Dictionary, 1400 (1986). The LIAS
satisfies this description. It is used to ascertain the size,
shape, distribution, length, width or similar aspects of
materials. Accordingly, the LIAS satisfies the description of a
measuring instrument.
Subheading 9031.40.00, HTSUSA, provides for optical
measuring instruments and appliances. The terms "optical
appliances" and "optical instruments" refer only to those
articles which incorporate one or more optical elements. Chapter
90, Additional U.S. Note 3. The LIAS contains a CCD camera with
a lens assembly. Camera lenses are considered optical elements
within heading 9002, HTSUSA. Therefore, the LIAS satisfies the
terms of this subheading and is classifiable therein.
HOLDING:
The LIAS is properly classifiable within subheading
9031.40.00, HTSUSA, which provides for other optical measuring
and checking instruments and appliances, dutiable at the rate of
10 percent ad valorem under General Column 1 rates of duty.
It is claimed that the LIAS is manufactured/assembled in
Canada. Goods originating in the territory of Canada, within the
meaning of General Note 3 (c)(vii)(B), are eligible for treatment
under the United States-Canada Free-Trade Agreement (CA). If
eligible for special treatment under the CA, merchandise
classifiable within subheading 9031.40.00, HTSUSA, is duty-free
under Special Column 1 rates.
Sincerely,
John Durant, Director
Commercial Rulings Division