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HQ 967451




May 31, 2005

CLA-2: RR:CR:TE 967451 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.49.9000

Port Director
Customs and Border Protection
10 Causeway Street
Boston, MA 02222

RE: Decision on Application for Further Review of Protest No. 0401-04-100195, concerning the classification of a Pellet Scanning System

Dear Port Director:

This is a decision on a protest filed on September 14, 2004, against your decision in the classification and liquidation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a Pellet Scanning System, entered at the Customs and Border Protection (CBP) port of Boston, Massachusetts. No samples were provided.

FACTS:

The subject article is a Pellet Scanning System, Model PS-25C, which is an optical system used for the quality control of plastic pellets made of polyethylene, nylon, polypropylene, and other polymers. The PS-25C is described as an optical measuring system for the measurement of physical properties of these pellets. The instrument includes a 3-CCD chip color camera, lighting, image processor, a conveying device and a hopper. The PS-25C is capable of inspecting transparent and opaque granules. The images are taken with a 3-CCD camera and are processed and evaluated by the image processor using specially designed software. In operation, the pellet sample is conveyed to a hopper. A narrow channel vibrates to allow a single layer of pellets to move down the channel that is optically divided into lanes for analysis purposes. A CCD color camera takes an image of the pellet. The image is immediately evaluated by the system and results can be viewed on a monitor. Color aberrations and other contaminates are detected. At the end of the channel, a chute allows discharge of the pellets into a container.

The CBP port of Boston classified the subject merchandise under subheading 9031.49.9000, HTSUSA, which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; . . .: Other optical instruments and appliances: Other: Other “.

The Protestant asserts that the merchandise is properly classifiable under subheading 9027.80.8090, HTSUSA, which provides for “Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); . . .: Other instruments and apparatus: Other: Other, Other”.

It is important to note that the Protest was timely filed with respect to only one of the entries, which was liquidated on August 27, 2004. Although the protest also referenced a second entry number, which was liquidated on June 12, 2004, this entry was untimely in that it was protested beyond the 90-day time frame permitted for filing a Protest under the 2004 CBP Regulations. However, the classification decision made by the CBP port of Boston, Massachusetts, is inconsistent with a decision that was made at another CBP port with respect to the same merchandise. Thus, the Application for Further Review (AFR) was properly approved and forwarded to this office for a determination. See Title 19 CFR Section 174.24(a).

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

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:

Other

9027.80.8090 Other

Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:

Other optical instruments and appliances:

9031.49 Other:

9031.49.9000 Other

The Protestant has asserted that the Pellet Scanning System, Model PS-25C, is most specifically described by heading 9027, HTSUSA, because it is similar to a “spectrometer”, which is eo nomine provided for in that heading. EN 90.27(5), provides, in relevant part, the following definition:

Spectrometers. These instruments are used to measure the wave-lengths of emission and absorption spectra. They consist essentially of an adjustable slit collimator (through which the beam of light to be analysed passes), one or more adjustable prisms, a telescope and a prism table. Some spectrometers (particularly
those used for infra-red or ultra-violet rays) are fitted with prisms or with diffraction gratings.

The 2005 Encyclopedia Britannica Online provides, in part, the following definition for a “spectrometer”:

Device for detecting and analyzing wavelengths of electromagnetic radiation, commonly used for molecular spectroscopy; more broadly, any of various instruments in which an emission (as of electromagnetic radiation or particles) is spread out according to some property (as energy or mass) into a spectrum and measurements are made at points or regions along the spectrum.

The PS-25C is not designed to detect or analyze wavelengths of electromagnetic radiation. Nor is it capable of making measurements at various points along a spectrum. The Pellet Scanning System, PS-25C, is primarily designed to make a qualitative assessment, i.e., to check the polymer granules/pellets for imperfections through the use of a color camera, lighting, and an image processor.

Heading 9031, HTSUSA, provides for, among other things, types of “ . . . checking instruments, appliances and machines” which employ the use of optical instruments for inspection of various devices or parts. EN 90.31(I)(B), specifically notes that the heading covers optical type measuring and checking appliances and instruments, such as an optical or graduated scale comparator designed for checking the dimensions of a part being manufactured against a standard piece, comparator benches for checking elongation, lengths, surfaces, etc. In particular, EN 90.31(I)(B)(6), notes that the heading covers “Apparatus equipped with rapid impulse differential feeler and optical viewer, for photographically recording and measuring profiles and conditions of surfaces”. The PS-25C, is such a device in that it makes a photographic recording via a color camera and provides a qualitative measurement of physical properties on the exterior surface of the material.

It is our opinion that the subject article is classifiable in subheading 9031.49.90, HTSUSA, as an “Other” optical measuring or checking instrument. CBP has issued a number of rulings concerning the classification of merchandise similar in operation to the pellet scanning system. In CBP Headquarters Ruling (HQ) 088025, dated January 17, 1991, the “LECO-2001 Image Analysis System” (LIAS) was classified under 9031.40.00 (now 9031.49.90). The LIAS was used for measurement of grain size in steel, nodule count, roundness measurements, and various other measurements. The issue presented was whether the LIAS was classifiable under heading 9027, HTSUSA, as an instrument for physical or chemical analysis, or whether it was classified under heading 9031, HTSUSA, as an optical measuring or checking instrument. In HQ 088025, CBP stated that the examples cited of apparatus for physical and chemical analysis in heading 9027, HTSUSA, include devices that measure the angle through which the plane of polarization of a ray of light is rotated (polarimeters); instruments which determine the refractive index of liquids or solids (refractometers); and instruments which measure the wavelengths of emission and absorption spectra (spectrometers). Since the LIAS did not perform these types of functions, CBP determined that the LIAS was not classifiable in heading 9027, HTSUSA. Rather, the LIAS measured the size, shape, distribution, length, width or similar aspects of materials and was found to be properly classifiable as an optical measuring or checking instrument in heading 9031, HTSUSA. Like the Pellet Scanning System, PS-25C, the LIAS only performed qualitative measurements. See also HQ 960429, dated August 19, 1998; HQ 955445, dated January 19, 1994; HQ 954682, dated July 14, 1994; and CBP New York Ruling (NY) 856065, dated September 24, 1990.

HOLDING:

The subject merchandise, Pellet Scanning System (Model PS-25C), is correctly classified in subheading 9031.49.9000, HTSUSA, 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 optical instruments and appliances: Other: Other.” The general column one duty rate at the time of entry was 3.5 percent ad valorem.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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