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HQ 966940





July 20, 2004

CLA-2 RR:CR:GC 966940 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9025.80.3500

Mr. James Alberti
A.J. Arango, Inc.
1516 E. Eighth Avenue
Tampa, FL 33605

RE: NY 895922 revoked; Moisture tester

Dear Mr. Alberti:

This is in response to the receipt by U.S. Customs and Border Protection of supplemental information pertaining to moisture analyzers. This information has resulted in our reconsideration of NY 895922, dated March 30, 1994, and issued to you at that time, on the classification of a moisture tester, imported by Feaster Horticultural Corp., under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise at issue is the “Speedy Moisture Tester.” On March 30, 1994, Customs issued NY 895922, holding that the moisture tester was classified under subheading 9027.80.80, HTSUS (1991), as “Other instruments and apparatus for physical and chemical analysis Other.”

The Speedy Moisture Tester is used to test the moisture in soils and aggregates. The literature provided indicates that the unit is a calcium carbide gas pressure moisture tester in which free moisture in the test material reacts with a calcium carbide reagent to form acetylene gas. This gas, sealed in the body of the Speedy Moisture Tester, registers the percentage of moisture in the sample on a Bourdon-type gauge, an integral part of the body of the merchandise. The percentage of moisture content is displayed in terms of “wet” or “dry” weight.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY 895922, as described below, was published in the Customs Bulletin on June 16, 2004. No comments were received in response to the notice.

ISSUE:

Whether the Speedy Moisture Tester is a hygrometer of heading 9025, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments; parts and accessories thereof:

Other instruments:

Other:

Hygrometers and psychrometers, non-recording

Thermographs, barographs, hygrographs and other recording instruments

9027 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:

9027.80.80 Other

In NY 895922, Customs classified the Speedy Moisture Tester under subheading 9027.80.80, HTSUS (there have been no changes to the HTSUS with regard to this subheading since the issuance of this ruling). The Speedy Moisture Tester is designed to determine the moisture content of soils and aggregates. The unit is essentially a calcium carbide gas pressure moisture tester and it determines moisture content by reacting the sample with a calcium carbide reagent to form acetylene gas. An examination of the gas using a Bourdon-type gauge then reveals the percentage of moisture in the sample, displaying it in terms of “wet” or “dry” weight.

EN 90.25 states in pertinent part as follows:

(D) Hygrometers and Hygrographs

These are used to determine the moisture content of the air, other gases or solid matter. The main types are:

Chemical hygrometers, based on absorption of moisture by chemical substances which are then weighed.

EN 90.27 states in pertinent part as follows:

This heading also excludes:

Hydrometers, thermometers, hygrometers and similar instruments of heading 9025, whether or not for use in laboratories.

Customs notes initially that the moisture tester at issue is not substantially similar to the exemplars listed in EN 90.27, as there is no example therein of a device that determines the moisture content of a sample. In contrast, EN 90.25 (D) describes hygrometers as being used to “determine the moisture content of solid matter” [Emphasis added], and the description for chemical hygrometers shows that they are a type of hygrometer used to determine the moisture content of solid matter. Although the chemical hygrometer is described as weighing a chemical substance subsequent to the absorption of moisture in order to determine moisture content, we note that the Speedy Moisture Tester, although employing a different evaluation process, similarly undertakes to determine the moisture content of a solid material. It should be noted that the meaning of an eo nomine designation is determined as of the effective date of the tariff statute, but will nevertheless include all articles subsequently created which fairly come within its scope. Sears Roebuck & Co. v. United States, 46 CCPA 79, C.A.D. 701 (1959); Hoyt, Shetston & Sciaroni et al., 52 CCPA 101, C.A.D. 865 (1965). Furthermore, if the difference is in the nature of an improvement and the essential character is preserved or incidentally altered, an unlimited eo nomine designation will include it. Robert Bosch Corp. et al. V. United States, 63 Cust. Ct. 96, 103-104, C.D. 3881 (1969). As such, although previously classified under heading 9027, HTSUS, the Speedy Moisture Tester is provided for under heading 9025, HTSUS. Therefore, the exclusion within EN 90.27 is applicable and, consequently, the Speedy Moisture Tester cannot be classified under heading 9027, HTSUS.

Customs has previously ruled that devices used for ascertaining the moisture content of a solid are classified under heading 9025, HTSUS. In NY E86303, dated September 14, 1999, Customs classified a moisture meter under subheading 9025.80.35, HTSUS. Similar to the Speedy Moisture Tester, the moisture meter classified therein was likewise designed to measure the moisture content in a solid, namely the presence of liquid water in soil. In addition, in NY G86536, dated February 15, 2001, Customs classified a moisture meter under subheading 9025.80.10, HTSUS. The product, called the “Moisture Meter-Sonde Hygrometrique,” determined the moisture content of soil and, therefore, is also functionally equivalent to the Speedy Moisture Tester.

Within heading 9025, HTSUS, the Speedy Moisture Tester is not considered an electrical instrument for classification purposes. Additional U.S. Note 2 to chapter 90 addresses the term “electrical” and states as follows:

For the purposes of this chapter, the term “electrical” when used in reference to instruments, appliances, apparatus and machines, refers to those articles the operation of which depends on an electrical phenomenon which varies according to the factor to be ascertained.

Customs notes that the “Moisture Meter-Sonde Hygrometrique,” described above, is considered an “electrical” instrument because of the process employed by that model to determine the moisture content of soil. The instrument determines moisture content by having the user insert a metal rod composed of zinc and copper into the soil that is being measured. The rod is then reacted by the milli-voltage in the soil to obtain an accurate reading. As such, this moisture meter relies in part on electricity in order to obtain a reading because the proportional variation of voltage in different soil samples will yield different results. In contrast, the Speedy Moisture Tester deduces moisture content by ascertaining the percentage of moisture in acetylene gas, which was obtained by reacting the soil or other aggregate material with a calcium carbide reagent to form the acetylene gas. Although the instrument is powered by electricity, it is distinguishable from instruments of chapter 90 that are termed “electrical” because there is no variance in the electrical current that can affect the outcome of the measurement process. Therefore, the Speedy Moisture Tester is not an electrical instrument.

Finally, the Speedy Moisture Tester appears to be a non-recording instrument because it is not designed to record changes in the moisture content of a sample over time, as would a hygrograph. EN 90.25 states that hygrographs are “similar to hair hygrometers but record variations of relative humidity” Similarly, Webster’s Third New International Dictionary of the English Language Unabridged (1993), defines “hygrograph” as “an instrument for recording automatically variations in the humidity of the atmosphere.” Presumptively, the information obtained by a hygrograph is used to construct a graph over time that documents these atmospheric variations. These definitions for a hygrograph are in keeping with its eo nomine designation under subheading 9025.80.40, HTSUS, which provides for “hygrographs and other recording instruments” [Emphasis added]. This subheading constitutes the only direct reference to “recording instruments” within heading 9025, HTSUS. In contrast, hygrometers are specifically provided for under subheading 9025.80.35, HTSUS and it is apparent that the HTSUS does not contemplate a hygrometer, other than a hygrograph, which includes a recording capability. Furthermore, the Speedy Moisture Tester does not possess the ability to record data variations between diverse samples with the intent of constructing a graph or similar means by which to record variations between samples. In view of the foregoing, the Speedy Moisture Tester is classified under subheading 9025.80.35, HTSUS, as a non-recording hygrometer.

HOLDING:

Under the authority of GRI 1, the Speedy Moisture Tester is classified under subheading 9025.80.3500, HTSUSA, as “Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments; parts and accessories thereof: Other instruments: Other: Hygrometers and psychrometers, non-recording.” The applicable rate of duty is 1.4 percent ad valorem. 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 www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY 895922 is REVOKED.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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