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