CLA-2-90:OT:RR:NC:N1:105
Paula Connelly
Sandler, Travis & Rosenberg, P.A.
100 Trade Center, Suite G-100
Woburn, MA 01801
RE: The tariff classification of the QuickScan II Grain Tester from China
Dear Ms. Connelly:
In your letter dated January 14, 2021, on behalf of your client EnviroLogix, Inc., you requested a tariff classification ruling.
The item under consideration is identified as the QuickScan II, which is described as a grain testing scanner that measures for the presence of harmful mycotoxins and/or genetically modified organism (GMO) levels. The results identify whether the specific grains tested can be used in food production. The tester houses a 7-inch LCD touchscreen display and a drawer that opens and closes for the insertion of the testing strips. The device uses proprietary QuickScan software, which measures the optical density of the control line and test line, and calculates a concentration for the grain sample being tested. In addition, the software logs data, creates reports, and presents the results on the display. In operation, a ground grain sample is extracted in liquid, and a test strip is inserted into the liquid extract, which wicks up, creating an immunoassay response. The test strip is inserted into the drawer of the QuickScan II for interpretation. Once the test is complete, the QuickScan II will provide feedback to the user on the quality of the grain sample to determine if there are mycotoxins and/or genetically modified organisms present. The QuickScan II will generate a PDF summary report for each sample tested and can also be exported into Excel for further analysis. You state that the QuickScan II is sold to farms, grain companies, and other agricultural businesses and allows customers to easily test samples of their grain production for the presence of mycotoxins and/or genetically modified organisms. You also state that the QuickScan II cannot be used in any other non-grain testing operations.
In your request you suggest the QuickScan II should be classified in subheading 9027.80.4590, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “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: Other”. We disagree. As described in ruling HQ 089800, “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).” In this instance, the QuickScan II utilizes a chemical analysis to determine the toxicity levels in the grain sample and therefore is considered a chemical analysis instrument and apparatus.
The applicable subheading for the QuickScan II Grain Tester will be 9027.80.4530, HTSUS, which provides for “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: Chemical analysis instruments and apparatus.” The general rate of duty will be free.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9027.80.4530, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.01, in addition to subheading 9027.80.4530, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
In your submission, you also request that the QuickScan II Grain Tester be considered for duty-free treatment as an agricultural or horticultural machinery under subheading 9817.00.50, HTSUS, which provides for “Machinery, equipment and implements to be used for agricultural or horticultural purposes.” Subheading 9817.00.50, HTSUS, is an actual use provision. To fall within this special classification, a three-part test must be met. First, the subject merchandise must not be excluded from the heading under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS. Secondly, the terms of the headings must be met in accordance with GRI 1, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Thirdly, the article must comply with the actual use regulations under Section 10.131 through 10.139, Customs Regulations (19 CFR 10.131 through 10.139).
Heading 9027, HTSUS is not among the excluded headings described in Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. Thus, the first part is met. The second part of the test calls for the unit to be included within the terms of the subheadings. Subheading 9817.00.50, HTSUS, as required by GRI 1, states the unit must be "machinery”, “equipment" or "implements" used for “agricultural or horticultural purposes”. It is this office’s opinion that the subject merchandise is “equipment” which fulfills the requirement of an agricultural pursuit.
The three conditions set forth in 19 C.F.R. § 10.133 which must be met to receive duty preference for actual use are: (a) Such use is intended at the time of importation; (b) The article is so used; and (c) Proof of use is furnished within 3 years after the date the article is entered or withdrawn from warehouse for consumption.
Based on the information provided, the Quickscan II is classifiable in subheading 9817.00.50, HTSUS, if the actual use requirements of Sections 10.131 through 10.139 of the Customs Regulations are met.
Please note that the additional duties imposed by headings 9903.88.01, 9903.88.02, 9903.88.03, and 9903.88.04 do not apply to goods for which entry is properly claimed under a provision of chapter 98 of the HTSUS, except for goods entered under headings 9802.00.40, 9802.00.50, 9802.00.60, and 9802.00.80. For headings 9802.00.40, 9802.00.50, and 9802.00.60, the additional duties apply to the value of repairs, alterations, or processing performed abroad, as described in the applicable heading. For heading 9802.00.80, the additional duties apply to the value of the article less the cost or value of such products of the United States, as described in heading 9802.00.80.
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 https://hts.usitc.gov/current.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Jason Christie at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division