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HQ 087597


November 27, 1990

CLA-2 CO:R:C:G 087597 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90

Mr. Wim Smits
Air Quality Technician
Ontario Ministry of the Environment
421 James St. South
Thunder Bay, Ontario, Canada
P7E 2V6

RE: Sampling Equipment; Precipitation Samplers; Air Samplers; Data Logger; Parts; Accessories; Machines and Mechanical Appliances, not Specified or Included Elsewhere

Dear Mr. Smits:

This is in reply to your letter of July 9, 1990, requesting classification of air and precipitation sampling equipment and a data logger, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The items to be imported are: (1) M.I.C type A precipitation sampler (to determine metals in precipitation), (2) M.I.C. type B precipitation sampler (to determine organics in precipitation), (3) Hi Vol air sampler (to determine toxics in air), (4) Low Vol air sampler (to determine metals in air), and (5) data logger (for electronic logging of relevant data). Items 1-4 are manufactured in Canada, whereas, item 5, the data logger, is a product of the United States. The Ontario Ministry of the Environment plans to use these machines in a program to monitor the toxics in precipitation and air in the Great Lakes Basin. A monitoring site will be established on each of the Great Lakes.

ISSUE:

What is the classification of air and precipitation sampling equipment, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)? Since the data logger is a product of the United States, we will not issue a classification decision on this apparatus.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

The air and precipitation sampling equipment is prima facie classifiable under the following headings:

9027 Instruments and apparatus for physical or chemical analysis...:

9027.80.40 Other instruments and apparatus: Electrical

9027 Instruments and apparatus for physical or chemical analysis...:

9027.90.40 Parts and accessories

8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter: [o]ther...: [o]ther: [o]ther:

8479.89.90 Other machines and mechanical appliances: Other

Heading 9027, HTSUSA, provides for: "[i]nstruments and apparatus for physical or chemical analysis...." Clearly, the precipitation samplers and air samplers are not instruments and apparatus for physical or chemical analysis since their specific design and function is to acquire samples, rather than the performance of physical or chemical analysis. Further, you have submitted information emphatically stating that these devices do not perform physical or chemical analysis.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to heading 9027, HTSUSA, page 1518, state:

This heading excludes machines or apparatus (whether or not electric) of the type classified in Section XVI, whether or not, in view of their low output, small size and general structure, they are obviously intended for use in laboratories (e.g., for preparing or treating specimens). The heading therefore excludes ovens, autoclaves, drying or steaming ovens or cabinets; desiccators; crushers and
mixers; centerfuges; stills, presses; filters and filter presses; stirrers; etc."

Webster's New World Dictionary, Third College Edition, (1988), defines "prepare" as follows:

...to set in order, get ready, to bring forth, bear; to make ready, usually for a specific purpose; make suitable; fit; adapt; train...

Clearly, the function of the air and precipitation samplers is "to set in order," "get ready," "bring forth" and "bear" samples for physical or chemical analysis. Thus, the samplers "prepare" samples, and in so doing, are thereby excluded from heading 9027, HTSUSA, in accordance with the direction of the EN governing heading 9027, HTSUSA.

The Explanatory Notes, although not dispositive, should be looked to for the proper interpretation of the HTSUSA. See 54 Fed. Reg. 35128 (August 23, 1989).

Additionally, the air and precipitation samplers are not classifiable as "parts" because they are not an integral, constituent and component part necessary to the proper functioning of any instrument or apparatus for physical or chemical analysis. Furthermore, the samplers are not classifiable as "accessories" because they do not add to the effectiveness of any instrument or apparatus for physical or chemical analysis. See United States v. Liebert, 450 F.2d 1405 (1971).

HOLDING:

The instant air and precipitation sampling equipment is properly classifiable under 8479.89.90, HTSUSA, which provides for: "[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter: [o]ther...: [o]ther: [o]ther." The rate of duty is 2.2% ad valorem, if the requirements of the United States-Canada Free Trade Agreement are met.

EFFECT ON OTHER RULINGS:

HQ 084210, dated July 12, 1989, held that the Biotest RCS Centrifugal Air Sampler was classifiable under 9027.10.60, HTSUSA, which provides for: "[i]nstruments and apparatus for physical or chemical analysis (for example...gas or smoke analysis apparatus)...[g]as or smoke analysis apparatus: [o]ther: [o]ther." This ruling held that "the air sample permits air quality analysis." It is now Customs position that collecting air samples, which subsequently "permits" air quality analysis to be performed, (but does not perform any analysis), does not
qualify air sample acquisition equipment for classification under 9027, HTSUSA, which provides for: "[i]nstruments and apparatus for physical or chemical analysis." Therefore, the Biotest RCS Centrifugal Air Sampler is properly classifiable under 8479.89.90, HTSUSA, which provides for: "[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter: [o]ther...: [o]ther: [o]ther." Ruling Letter HQ 084210, (July 12, 1989), is revoked under authority of section 177.9(d), Customs Regulations.

Sincerely,

John Durant, Director

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