CLA-2-90:OT:RR:NC:N1:405
Ms. Rosie T. Rubin
Hanson Research Corporation
9810 Variel Avenue
Chatsworth, CA 91311
RE: The tariff classification of an instrument for measuring the flowabiliy of powders.
Dear Ms. Rubin:
In your letter dated May 18, 2015 on behalf of the Korean Customs Officials, you requested a tariff classification ruling.
The Flodex Test Apparatus is designed to provide a repeatable index of the flowabiliy of powders. This index is used in formulating oral pharmaceutical dosage forms. The testing considers parameters that affect powder flowability, such as particle size and shape, "fines", unit surface, actual and bulk density, porosity, settling, and electrostatic charge. Flowability is said to be based upon the powder’s ability to fall freely through a hole in a disk. The Flodex Test Apparatus includes a complete set of flow disks. The unit is manufactured in the United States.
You describe the Flodex as “an instrument used to conduct physical analysis of powder flow properties”. In Pharmacia Fine Chemicals, Inc. v. United States, 9 CIT 438, 441 (1985), 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 facilitate physical or chemical determination of the quantity, qualities, or composition of a substance. However, the Flodex 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 the size of the powder particles in order to determine flowability. Thus, the Flodex does not satisfy the CIT's description of the term "physical analysis".
In HQ 088025 dated January 17, 1991, HQ’s clarifies the phrase “measuring or checking” by stating that
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, 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 Flodex satisfies this description as it determines flowability based upon the size of the powder falling through the hole in a disk. Accordingly, the Flodex satisfies the description of a measuring instrument.
The applicable subheading for the Flodex Test Apparatus will be 9031.80.8085, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Other instruments, appliances and machines: Other … Other”.
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 April Cutuli at [email protected].
Sincerely,
Gwenn Klein Kirschner
Director
National Commodity Specialist Division