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