CLA-2 CO:R:C:M 955445 DWS
Mr. Peter Faraday, Vice President
Sympatec, Inc.
Princeton Service Center
3490 U.S. Route 1
Princeton, NJ 08540-5706
RE: Particle Size and Distribution Measuring Instruments;
Chemical Analysis; Burrows Equipment Company v. U.S.;
HQ 088025; Pharmacia Fine Chemicals, Inc. v. U.S.;
Measuring or Checking; U.S. v. Corning Glass Works;
NY 863015; 9027.50.40
Dear Mr. Faraday:
This is in response to your letter of October 14, 1993, to
the Area Director of Customs, New York Seaport, concerning the
classification of particle size and distribution measuring
instruments under the Harmonized Tariff Schedule of the United
States (HTSUS). Your letter was referred to this office for a
response.
FACTS:
The merchandise consists of particle size and distribution
measuring instruments (model nos. HELOS BA/KA/LA BASIS, BA/KA/LA
COMPACT, BA/KA/LA SUB MICRON, BA/KA/LA POWDER, BA/KA/LA
COMPETITION, BA/KA/LA TOPMICRON, BA/KA/LA EXPLORER, and HELOS
VARIO). In your letter, you refer to the instruments as particle
spectrometers. The instruments measure the diffraction pattern
caused by the presence of particles in the path of a helium-neon
laser beam. The infra-red rays are collected onto a solid state
sensor. Data from the sensor is sent to the associated computer
for calculation and subsequent display and print out. The purpose
of the instruments, in measuring the particles, is to help
determine the size and distribution of the particles. It is our
understanding that the instruments only measure; they do not
perform any type of analysis based upon measurement information
received.
The subheadings under consideration are as follows:
9027.50.40: [i]nstruments and apparatus for physical or
chemical analysis (for example . . .
spectrometers . . . ) . . . : [o]ther
instruments and apparatus using optical
radiations (ultraviolet, visible, infrared):
[e]lectrical.
The general, column one rate of duty for goods classifiable
under this provision is 4.9 percent ad valorem.
9031.40.00: [m]easuring or checking instruments, appliances
and machines, not specified or included
elsewhere in this chapter . . . : [o]ther
optical instruments and appliances.
The general, column one rate of duty for goods classifiable
under this provision is 10 percent ad valorem.
ISSUE:
Whether the particle size and distribution measuring
instruments are classifiable under subheading 9027.50.40, HTSUS,
as other instruments for chemical analysis using optical
radiations, or under subheading 9031.40.00, HTSUS, as other optical
measuring instruments.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
It is your claim that the instruments are spectrometers using
optical radiation for the chemical analysis of particles. In
Burrows Equipment Company v. U.S., C.D. 3848 (1969), it was stated
that:
[a]n instrument or apparatus is included within the common
meaning of the term "chemical analysis" if it determines
one or more ingredients of a substance either as to kind
or amount; if it performs a detailed examination of a
complex chemical substance for the purpose of enabling
one to understand its nature or to determine an essential
feature; or if it determines what elements are present in
a chemical substance.
In HQ 088025, dated January 17, 1991, we held that an image
analysis system, which, among other applications, was used to
measure grain size of steel and particle size distribution of
carbides in tool steel, was classifiable under subheading
9031.40.00, HTSUS. In holding that the system was not classifiable
under heading 9027, we stated that:
[t]he 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 facilitate physical or chemical determination
of the quantity, qualities, or composition of a substance.
Pharmacia Fine Chemicals, Inc. v. U.S., 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
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 term "physical analysis".
It is our position that the subject instruments do not perform
chemical analysis on particles. It is our understanding that they
do not determine the ingredients of the particles, perform a
detailed examination of a complex chemical substance in order to
ascertain its essential feature, or determine what elements are
present in a chemical substance. The instruments are similar to
the merchandise in HQ 088025 in that they measure the size and
distribution of particles, without performing any analysis based
upon its findings. The findings are downloaded onto a computer and
then printed. The user then analyzes the findings made by the
instruments.
Therefore, we find that the instruments are not spectrometers
classifiable under subheading 9027.50.40, HTSUS, as they are not
described under that provision.
In holding that the image analysis system was classifiable
under subheading 9031.40.00, HTSUS, it was stated in HQ 088025
that:
[t]he phrase "measuring or checking" is not defined by the
[HTSUS]. However, the Court of Customs and Patent Appeals
(CCPA), the forerunner of the Court of Appeals of the
Federal Circuit, has referred to Webster's Third New
International Dictionary to ascertain the common meaning of
"measuring or checking". U.S. v. Corning Glass Works,
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). 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.
As with the image analysis system in HQ 088025, the
instruments under consideration here are used to ascertain, or
measure, the size and distribution of particles. Therefore,
because the instruments are measuring instruments, it is our
position that they are specifically classifiable under subheading
9031.40.00, HTSUS. See NY 863015, dated May 15, 1991, which held
that a laser scattering particle size distribution analyzer was
classifiable under subheading 9031.40.00, HTSUS.
HOLDING:
The particle size and distribution measuring instruments are
classifiable under subheading 9031.40.00, HTSUS, as other optical
measuring instruments.
Sincerely,
John Durant, Director