CLA-2 CO:R:C:M 089800 KCC
Ms. Dina Meekins
Hensel, Bruckmann & Lorbacher Inc.
J.F.K. International Airport
Jamaica, New York 11430
RE: Moisture Analyzer; Reconsideration of NYR 860128; GRI 1;
Pharmacia Fine Chemicals; instruments for physical and
chemical analysis; use provision; EN 90.16; EN 85.14; Note
1(m), Section XVI
Dear Ms. Meekins:
This is in reference to your letter dated May 31, 1991,
requesting reconsideration of New York Ruling (NYR) 860128 dated
February 21, 1991, concerning the tariff classification of
moisture analyzers from Switzerland, under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA).
FACTS:
The merchandise at issue is the Mettler LJ16 moisture
analyzer. NYR 860128 held that the moisture analyzer was
classified under subheading 9027.80.80, HTSUSA, as "Other
instruments and apparatus for physical and chemical
analysis...Other." You state that the moisture analyzer is a
balance and should be classified under either subheading
9016.00.20, HTSUSA, which provides for balances of a sensitivity
of 5 cg or better, or subheading 8514.10.00, HTSUSA, which
provides for resistance heated furnaces and ovens.
The LJ16 moisture analyzer is used in operations where the
moisture content of the same materials has to be routinely
determined daily, i.e., quality assurance operations and
production processes. Essentially, it consists of a balance and
an infrared dryer. After placing a sample on the balance and
closing the lid, the weight of the sample is automatically
recorded. Immediately thereafter, the sample is dried with the
use of infrared radiation. Upon completion of the drying
process, the moisture content of the sample is displayed in grams
and by a percentage. In addition, data on the drying time and
temperature can be obtained.
The dryer is not an optional component for the LJ16.
However, Mettler does sell separate infrared dryers (LP16s) for
use with the Mettler PM and PE series of balances which can be
easily removed from the PM and PE balances for regular weighing.
ISSUE:
Is the Mettler LJ16 moisture analyzer properly classified
under heading 8514, HTSUSA, as "Industrial or laboratory
electric...furnaces and ovens," or heading 9016, HTSUSA, as
"Balances of a sensitivity of a 5 cg or better," or heading 9027,
HTSUSA, as "Instruments and apparatus for physical or chemical
analysis"?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUSA, 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...according to the
following provisions..." The competing headings in this case are
headings 8514, 9016, and 9027, HTSUSA. The headings describe:
8514 Industrial or laboratory electric (including induction
or dielectric) furnaces and ovens...
8514.10.00 Resistance heated furnaces and ovens.
* * * * * * * * * * * *
9016 Balances of a sensitivity of a 5 cg or better, with or
without weights; parts and accessories thereof...
9016.00.20 Electrical balances and parts and accessories
thereof.
* * * * * * * * * * * *
9027 Instruments and apparatus for physical or chemical
analysis...
9027.80.80 Other instruments and apparatus...
Other...Chemical analysis instruments and
apparatus.
Heading 9027, HTSUSA, provides for "...instruments and
apparatus for physical or chemical analysis (for example,
polarimeters, refractometers, spectrometers, gas or smoke
analysis apparatus)." NYR 860128 held that the moisture analyzer
satisfied the terms of this heading because it is used for the
"physical and chemical analysis" of a material. The term
physical and chemical analysis is not defined within heading
9027, HTSUSA. 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 moisture analyzer does not perform
these type of functions. Instead, it is designed to determine
the moisture content of a material.
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 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 (CIT 1985).
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, 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), HTSUSA. The principal use of the moisture
analyzer is to determine the moisture content of a sample, rather
than the weight of the sample. The weight of the sample before
and after the drying process allows the moisture analyzer to
determine the moisture content of the sample. Therefore, the
moisture analyzer is more specifically described as an instrument
for physical analysis as provided for in subheading 9027.80.80,
HTSUSA.
Subheading 9016.00.20, HTSUSA, provides for electrical
balances of a sensitivity of 5 cg or better. You argue that the
moisture analyzer is classifiable as an electrical balance within
this tariff provision. The electrical balances in this tariff
provision can be used to record the variations in weight of
substances submitted to special treatment, such as heating.
Harmonized Commodity Description and Coding System (HCDCS),
Explanatory Note (EN) 90.16, Vol. 4, p. 1485. The ENs, although
not dispositive, are to be looked to for the proper
interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August
23, 1989). The electrical balances in subheading 9016.00.20,
HTSUSA, merely involve measuring the weight variations of a
material, whereas the moisture analyzer principle use is to
determine the moisture content of a material by using the weight
factors taken from the balance. The moisture analyzer does not
satisfy the terms of this subheading. Accordingly, the moisture
analyzer is not properly classifiable within this subheading.
Subheading 8514.10.00, HTSUSA, provides for resistance
heated furnaces and ovens. Additionally, you argue that the
moisture analyzer is classifiable within this subheading. The
furnaces and ovens described in this subheading include such
items as ovens for bread making, dental ovens, crematorium
furnaces, and furnaces for incinerating waste, but excludes
electrically heated apparatus for drying. HCDCS, EN 85.14, Vol.
4, p. 1352. The moisture analyzer does not satisfy the terms of
this subheading as it is a device used to determine the moisture
content of a material. Additionally, classification under
subheading 8514.10.00, HTSUSA, is precluded pursuant to Note
1(m), Section XVI, HTSUSA, which states that "this section does
not cover articles of chapter 90." Accordingly, the moisture
analyzer is not properly classifiable within this subheading.
HOLDING:
The Mettler moisture analyzer is properly classified under
subheading 9027.80.80, HTSUSA, as "Instruments and apparatus for
physical or chemical analysis...Other instruments and
apparatus...Other...Chemical analysis instruments and apparatus."
Accordingly, NYR 860128 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division