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