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HQ W563475




November 3, 2006

CLA-02 RR:CTF:VS W563475 EAC

CATEGORY: CLASSIFICATION

Port Director
U.S. Customs and Border Protection
6431 Alum Creek Drive
Groveport, OH 43124

RE: Internal Advice; E-Meters; Subheading 9030.39.00, HTSUS; Subheading 9810.00.25, HTSUS; Subheading 9810.00.90, HTSUS; Subheading 9810.00.95, HTSUS.

Dear Port Director:

This is in response to a letter of March 21, 2006, and electronic message of April 7, 2006, submitted by the law firm of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt on behalf of the Church of Scientology, in which counsel requests a ruling regarding the classification of “E-Meters” that are currently imported into the United States under subheading 9030.39.00, Harmonized Tariff Schedule of the United States (“HTSUS”). We have additionally considered the information counsel provided during the course of a teleconference on July 13, 2006, and in a supplemental submission of August 3, 2006. As this case pertains to current transactions, however, we will treat this matter as a request for internal advice in accordance with section 177.11, Customs and Border Protection Regulations (19 C.F.R. §177.11). In this regard we note that the Church of Scientology has provided information to this office indicating that the subject articles are imported primarily through the Port of Entry at Columbus, OH.

FACTS:

The devices under consideration in this case are manufactured in Taiwan and are referred to as “E-Meters.” The E-Meter is described as a patented, high-precision, electronic device that is used to measure changes in resistance in the human body. The E-Meter measures these changes by use of a small current (75 micro amps @ 5 volts), which is amplified and converted to a needle display within a specially calibrated window.

It is stated that the E-Meter is a religious instrument used solely to aid the Church of Scientology’s clergy in “auditing,” a core religious service of the Church. Auditing is described as a form of spiritual counseling during which a Scientology minister, through the use of targeted questions, assists the parishioner in identifying and sharing incidents from his or her past that are a source of spiritual disturbance. Scientologists believe that as the parishioner repeatedly addresses these areas of spiritual trouble, the areas of harmful energy or force associated with them will be “discharged,” thereby enabling the individual to advance spiritually. The Scientology minister’s task in ministering an auditing service requires use of the E-Meter, which as noted above, measures changes in resistance in the human body. During auditing services, the minister analyzes the needle movements in the E-Meter’s window in order to determine the appropriate question to ask the parishioner.

It is stated that the E-Meter is the only product sanctioned for use by the Church of Scientology for use by its ministers and that circulation of the E-Meter is restricted to qualified Church of Scientology ministers for purposes of auditing. When a Scientology minister acquires an E-Meter from the Church, he or she must sign a religious covenant promising to use it only for such purposes and not to transfer it to anyone who is not so qualified. The Church of Scientology has enforced this covenant the few times it was necessary to do so. Such enforcement measures were not described.

In consideration of the foregoing, counsel contends that the E-Meters should be classified in Chapter 98 of the HTSUS. Counsel specifically opines that the E-Meters could potentially be classified under subheading 9810.00.25, 9810.00.90, or 9810.00.95, HTSUS.

ISSUE:

Whether the E-Meter may be classified under subheading 9810.00.25, 9810.00.90, or 9810.00.95, HTSUS.

LAW AND ANALYSIS:

Upon entry into the United States, the E-Meters are currently classified under subheading 9030.39.00, HTSUS, which provides for:

Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof; Other instruments, for measuring or checking voltage, current, resistance or power, without a recording device: other.

The rate of duty for articles classified in this provision is 1.7% ad valorem. As noted above, however, counsel contends that the imported E-Meters should be classified under subheading 9810.00.25, 9810.00.90, or 9810.00.95, HTSUS.

The first proposed classification is subheading 9810.00.25, HTSUS, which provides preferential duty treatment for:

Articles imported for the use of an institution organized and operated for religious purposes, including cemeteries, schools, hospitals, orphanages and similar nonprofit activities staffed and controlled by such institution:

Altars, pulpits, communion tables, baptismal fonts, shrines, mosaics, iconostases or parts, appurtenances or adjuncts of any of the foregoing, whether to be physically joined thereto or not, and statuary (except granite or marble cemetery headstones, granite or marble grave markers and granite or marble feature memorials, and except casts of plaster of Paris, or of compositions of paper or papier-mâché)

In Headquarters Ruling Letter (“HRL”) 952570 dated December 23, 1992, an imported wood canopy (described by the protestant as a columbarium) was placed on top of existing cabinets at a church. CBP held that, while the wood canopy would fit into the broader category of articles imported for the use of an institution organized and operated for religious purposes, the item was not included among the articles specified within subheading 9810.00.25, HTSUS. Therefore, preferential treatment under subheading 9810.00.25, HTSUS, was denied.

However, preferential treatment was granted to certain imported sliding doors, paper-rolling screens, and wooden blinds in HRL 558923 dated May 11, 1995. The protestant in HRL 558923 claimed that the items were appurtenances to an altar, used by a Buddhist Church during religious ceremonies. CBP agreed, stating that the courts have held that the term “appurtenances” and “adjuncts” describe articles that belong, pertain, or relate to another article. Supportive of protestant’s claim were photographs and a written description that reflected that the subject articles were, in fact, part of an altar used in connection with religious ceremonies. See also, New York Ruling Letter (“NY”) C86346 dated April 14, 1998 (certain idols and ‘Shihasan’, carved teak wood altars for all god idols, were classifiable under subheading 9810.00.25, HTSUS).

As applied, we find that the facts of this case are analogous to those considered in HRL 952570 because, although the E-Meter may fit into the broader category of articles imported for the use of an institution organized and operated for religious purposes, the articles are not one of the clearly enumerated items set forth in subheading 9810.00.25, HTSUS. It has been alleged that the minister’s use of the E-Meter during auditing is akin to a clergy member of another religious denomination ministering a sermon from a pulpit. However, the Church of Scientology has made no claim that the E-Meter is an appurtenance or adjunct of an altar or pulpit. Rather, it is our understanding that the E-Meter is set on a desk or table during auditing. Therefore, the E-Meter is not classifiable under subheading 9810.00.25, HTSUS.

The second proposed classification is subheading 9810.00.90, HTSUS, which provides for:

Prayer shawls, bags for the keeping of prayer shawls and headwear of a kind used for public or private religious observances, whether or not any of the foregoing is imported for the use of a religious institution.

The E-Meter is not one of the items enumerated under subheading 9810.00.90, HTSUS. However, counsel refers to the legislative history of this provision in support of the argument that the E-Meter devices could potentially be classified under subheading 9810.00.90, HTSUS. Counsel specifically opines that “ the reasoning for the elimination of the duty was simple – because the only use of the merchandise is religious, it should be given duty-free treatment” and that “ just as the prayer shawl is integral to the observance to Judaism, the E-Meter is integral to the observance of the Church of Scientology.” In considering this argument, we note that the legal language of the tariff in this instance is clear and unambiguous. In such cases the courts have held that “legislative history may not be resorted to when the language of the statute is plain and unambiguous.” See, Continental Manufacturing Co. et al. v. United States, 82 Cust. Ct. 187, 190 (1979) (citing C.J. Tower & Sons v. United States, 41 CCPA 195, C.A.D. 550 (1954)). As such, legislative history may not be resorted to in this case and it remains our opinion that the E-Meter is not classifiable under subheading 9810.00.90, HTSUS.

The third proposed classification is subheading 9810.00.95, HTSUS, which provides preferential duty treatment for:

Scrolls or tablets of wood or paper, commonly known as Gohonzon, imported for use in public or private religious observances, whether or not any of the foregoing is imported for the use of a religious institution.

The E-Meter is not one of the items enumerated under subheading 9810.00.95, HTSUS. However, counsel claims that:

Again it could be argued that Scientology ministers utilizing the auditing services of the E-Meter is similar to the use of a Gohonzon in private religious observance whether or not imported by the religious institution. The “E-Meter” is merely a newer artifact in a newer religion. But the basic core use of both items transcends any one particular religion – the Gohonzon and the “E-Meter” are tools used by each religion to achieve an inner contentment. Thus, it could be argued that this provision may even be a closer match than the prayer shawl. The bottom line is that the “E-Meter” should be classified in a Chapter 98 religious article provision, duty-free.

Counsel has offered no legal or administrative precedent to support its conclusion. As with the provisions considered above, we find that the tariff provision is clear and unambiguous and does not cover the subject merchandise. Accordingly, we find that the E-Meter is not classifiable under subheading 9810.00.95, HTSUS.

Notwithstanding the foregoing, counsel argues that treatment under the above-referenced Chapter 98, HTSUS, provisions must be afforded to the E-Meter under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §2000bb et. Seq., Public Law 103-141, 107 Stat. 1488 (November 16, 1993). Under the RFRA it is presumptively unlawful for an agency of the federal government to “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” See, 42 U.S.C. §2000bb-1(a). As noted in counsel’s submission, the courts have held that in order to be considered a “substantial” burden, the governmental action must “significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person’s] individual [religious] beliefs; must meaningfully curtail a [person’s] ability to express adherence to his or her faith; or must deny a [person] reasonable opportunities to engage in those activities that are fundamental to a [person’s] religion.” See, United States v. Evangelical Free Church (In re Young), 82 F.3d 1407, 1418 (8th Cir. 1996), aff’d after remand, 141 F.3d 854 (8th Cir. 1998). The only exception to this prohibition is if there is a compelling governmental interest justifying the burden imposed and if the government applies the least restrictive means in furthering such interest. See, 42 U.S.C. §2000bb-1(b).

Counsel asserts that classifying the E-Meter in subheading 9030.39.00, HTSUS, constitutes a substantial burden on the Church of Scientology’s exercise of religion and that the U.S. Government, and CBP in particular, has no compelling government interest justifying such a burden. In support of this position, counsel has cited various court cases, including that of Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 126 S. Ct. 1211 (2006), in which the Supreme Court considered whether the Government’s application of the Controlled Substances Act to seize an imported shipment of “hoasca” violated the RFRA. In Gonzales, members of the respondent church received communion by drinking the hoasca, which is a tea brewed from Amazonian Rainforest plants that contain “DMT”, a hallucinogen regulated under the Controlled Substances Act. After seizure of the shipment, the church filed suit and was granted a preliminary injunction prohibiting the Government from enforcing the Controlled Substances Act with respect to the church’s importation and use of hoasca. See, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1252 (NM 2002). In affirming the District Court’s preliminary injunction order, the Court noted that the Government had not demonstrated a compelling interest justifying the substantial burden imposed in banning the church’s sacramental use of hoasca.

Counsel opines that Gonzales compels CBP to construe existing law in light of the RFRA to permit the duty-free importation of E-Meters. Although we have considered these arguments, the record before us lacks evidence or an explanation as to how, in classifying the E-Meter in accordance with U.S. law under subheading 9030.39.00, HTSUS, CBP has imposed a substantial burden on the Church of Scientology’s exercise of religion. Rather, it is our opinion that the circumstances presently under consideration, involving the classification of an article in accordance with U.S. law resulting in a 1.7% ad valorem tariff, are clearly distinguishable from those cases in which courts have found such a substantial burden. In Gonzales, for example, the substantial burden imposed by banning the church’s sacramental use of hoasca was evident. Also illustrative in this regard is In re Young, in which the court held that the recovery, under federal bankruptcy law, of tithes paid to the church substantially burdened the debtors’ free exercise of their religion because permitting the government to recover these contributions would effectively prevent the contributors from tithing, an important expression of their sincerely held beliefs. 82 F.3d at 1418. See also, United States v. Philadelphia Yearly Meeting of the Religious Soc’y of Friends, 322 F. Supp. 2d 603 (E.D. Pa. 2004) (levy on Quaker meeting employee’s wages substantially burdened the organization’s exercise of religion because the government’s conduct substantially pressured it to abandon core Quaker beliefs, but was done permissibly in furtherance of a compelling government interest).

As noted above, the Church of Scientology has failed to demonstrate the alleged substantial burden imposed by CBP in classifying the subject E-Meters in accordance with U.S. law under subheading 9030.39.00, HTSUS. Therefore, it remains our opinion that the E-Meters may not be classified under subheading 9810.00.25, 9810.00.90, or 9810.00.95, HTSUS.

HOLDING:

Based upon the information submitted, it is our opinion that the E-Meter may not be classified under subheading 9810.00.25, 9810.00.90, or 9810.00.95, HTSUS.

Sixty days from the date of this letter, the office of Regulations and Rulings will make this internal advice 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 means of public distribution.

Sincerely,

Monika Brenner, Chief
Valuation and Special Programs Branch

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