CLA-2 RR:CR:GC 966941 NSH
Mr. Kerry J. Kiggins
Mettler Toledo, Inc.
60 Collegeview Road
Westerville, OH 43081
RE: HQ 089800 and NY 860128 revoked; Moisture Analyzer
Dear Mr. Kiggins:
This is in response to your letter of December 29, 2003, requesting reconsideration of HQ 089800, dated September 13, 1991, on the classification of a moisture analyzer under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter has been referred to this office for reply.
FACTS:
The merchandise at issue is the Mettler LJ16 moisture analyzer. NY 860128, dated February 21, 1991, held that the moisture analyzer was classified under subheading 9027.80.80, HTSUS (1991), as “Other instruments and apparatus for physical and chemical analysis … Other.” At that time, your Customs representative stated that the moisture analyzer was an electronic balance and should have been classified under subheading 9016.00.20, HTSUS (1991), or subheading 8514.10.00, HTSUS (1991). This classification as set forth in NY 860128 was affirmed by HQ 089800.
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 weighing scale called 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.
In requesting this reconsideration, Mettler claims classification of the Moisture Analyzer under subheading, 9027.80.45, HTSUS (2004), which provides for instruments and apparatus for physical or chemical analysis. Because HQ 089800 was itself a reconsideration of NY 860128, this ruling letter also applies to that NY ruling.
In addition, you also have provided information on five models of moisture analyzer, HB43, HG63, HG63P, HR83 and HR83P, all of which feature a halogen dryer and appear substantially similar in both primary function and measuring technique to the LJ16 at issue.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 089800 and NY 860128, as described below, was published in the Customs Bulletin on June 16, 2004. No comments were received in response to the notice.
ISSUE:
Whether the LJ16 moisture analyzer is a hygrometer of heading 9025.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUS provisions under consideration are as follows:
Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments; parts and accessories thereof:
Other instruments:
Other:
Hygrometers and psychrometers, non-recording
* * * * * *
Thermographs, barographs, hygrographs and other recording instruments
* * * * * *
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:
Other instruments and apparatus:
Other:
Electrical
* * * * * *
9027.80.80 Other
In HQ 089800, Customs classified the LJ16 moisture analyzer under subheading 9027.80.80, HTSUS (there have been no changes to the HTSUS with regard to this subheading since the issuance of HQ 089800). You assert that the LJ16 is classified under subheading 9027.80.45, HTSUS, because it is “electrical.”
The LJ16 moisture analyzer is designed to determine the moisture content of a material. It accomplishes this by having the user place the sample material, which in the case of the LJ16 is a sample of solid matter, on a balance; the weight of the sample is then recorded. Subsequently, infrared radiation is used to dry the sample, which is again weighed. The divergence between the two measurements, if any, is on account of the moisture content of the sample. It is because of the drying process that the moisture content is quantifiable; it is displayed in grams and as a percentage of the whole sample.
EN 90.25 states in pertinent part as follows:
(D) Hygrometers and Hygrographs
These are used to determine the moisture content of the air, other gases or solid matter. The main types are:
Chemical hygrometers, based on absorption of moisture by chemical substances which are then weighed.
…
EN 90.27 states in pertinent part as follows:
This heading also excludes:
…
Hydrometers, thermometers, hygrometers and similar instruments of heading 9025, whether or not for use in laboratories.
Customs notes initially that the moisture analyzer at issue is not substantially similar to the exemplars listed in EN 90.27, as there is no example therein of a device that determines the moisture content of a sample. In contrast, EN 90.25 (D) describes hygrometers as being used to “determine the moisture content of … solid matter” [Emphasis added], and the description of chemical hygrometers is substantially similar to the moisture analyzer at issue. Although the chemical hygrometer is described as weighing a chemical substance subsequent to the absorption of moisture in order to determine moisture content, and the LJ16 is described as measuring the reduced weight of a solid subsequent to the evaporation of moisture in order to determine moisture content, we note that this method of weighing and measuring is essentially the same process. It should be noted that the meaning of an eo nomine designation is determined as of the effective date of the tariff statute, but will nevertheless include all articles subsequently created which fairly come within its scope. Sears Roebuck & Co. v. United States, 46 CCPA 79, C.A.D. 701 (1959); Hoyt, Shetston & Sciaroni et al., 52 CCPA 101, C.A.D. 865 (1965). Furthermore, if the difference is in the nature of an improvement and the essential character is preserved or incidentally altered, an unlimited eo nomine designation will include it. Robert Bosch Corp. et al. V. United States, 63 Cust. Ct. 96, 103-104, C.D. 3881 (1969). As such, although the LJ16 was previously classified under heading 9027, HTSUS, it is provided for under heading 9025, HTSUS. Therefore, the exclusion within EN 90.27 is applicable and consequently the LJ16 cannot be classified under heading 9027, HTSUS.
Customs has previously ruled that devices used for measuring the moisture content of a solid are classified under heading 9025, HTSUS. In NY E86303, dated September 14, 1999, Customs classified a moisture meter under subheading 9025.80.35, HTSUS. Although differing significantly in both design and sensitivity from the LJ16, this moisture meter was likewise designed to measure the moisture content in a solid, namely the presence of liquid water in soil. Similarly, in NY G86536, dated February 15, 2001, Customs classified a moisture meter under subheading 9025.80.10, HTSUS. The product, called the “Moisture Meter-Sonde Hygrometrique,” measured the moisture content of soil and therefore is also functionally equivalent to the LJ16.
Within heading 9025, HTSUS, the LJ16 is not considered an electrical instrument for classification purposes. Additional U.S. Note 2 to chapter 90 addresses the term “electrical” and states as follows:
For the purposes of this chapter, the term “electrical” when used in reference to instruments, appliances, apparatus and machines, refers to those articles the operation of which depends on an electrical phenomenon which varies according to the factor to be ascertained.
Customs notes that the “Moisture Meter-Sonde Hygrometrique,” described above, is considered an “electrical” instrument because of the process employed by that model to determine the moisture content of soil. The instrument determines moisture content by having the user insert a metal rod composed of zinc and copper into the soil that is being measured. The rod is then reacted by the milli-voltage in the soil to obtain an accurate reading. As such, this moisture meter relies in part on electricity in order to obtain a reading because the proportional variation of voltage in different soil samples will yield different results. In contrast, the LJ16 operates by determining the divergence of weight from a sample, subsequent to that sample being dried by infrared radiation. Although the instrument is powered by electricity, it is distinguishable from instruments of chapter 90 that are termed “electrical” because there is no variance in the electrical current that can affect the outcome of this process. Rather, it is deduced by a calculation involving the divergence from the first and second weighing of the sample. Therefore, the LJ16 is not an electrical instrument.
Finally, the LJ16 moisture analyzer appears to be a non-recording instrument because it is not designed to record changes in the moisture content of a sample over time, as would a hygrograph. EN 90.25 states that hygrographs are “similar to hair hygrometers but record variations of relative humidity…” Similarly, Webster’s Third New International Dictionary of the English Language Unabridged (1993), defines “hygrograph” as “an instrument for recording automatically variations in the humidity of the atmosphere.” Presumptively, the information obtained by a hygrograph is used to construct a graph over time that documents these atmospheric variations. These definitions for a hygrograph are in keeping with its eo nomine designation under subheading 9025.80.40, HTSUS, which provides for “…hygrographs and other recording instruments” [Emphasis added]. This subheading constitutes the only direct reference to “recording instruments” within heading 9025, HTSUS. In contrast, hygrometers are specifically provided for under subheading 9025.80.35, HTSUS and it is apparent that the HTSUS does not contemplate a hygrometer, other than a hygrograph, which includes a recording capability. Furthermore, the LJ16 moisture analyzer, although containing some limited electronic memory of individual sample measurements, does not possess the ability to record data variations between diverse samples with the intent of constructing a graph or similar means by which to display variations between samples.
In view of the foregoing, the LJ16 is classified under subheading 9025.80.35, HTSUS, as a non-recording hygrometer. You have also submitted information regarding five additional models of moisture analyzers. Because Customs believes the HB83, HG63, HG63P, HR83 and HR83P moisture analyzers are updated models of the LJ16, substantially equivalent in both their primary function and measuring technique, they would also be classified under subheading 9025.80.35, HTSUS.
HOLDING:
Under the authority of GRI 1, the LJ16, HB83, HG63, HG63P, HR83 and HR83P moisture analyzers are classified under subheading 9025.80.3500, HTSUSA, as “Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments; parts and accessories thereof: Other instruments: Other: Hygrometers and psychrometers, non-recording.” The applicable rate of duty is 1.4 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ 089800 and NY 860128 are REVOKED.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division