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HQ 957301

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January 18, 1995

CLA-2 CO:R:C:M 957301 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90

Mr. Charles M. Coleman
Coleman Laboratories Corp.
958 Washington Road
Pittsburgh, PA 15228

RE: Revocation of NY 882589; Plastic Pipettes; Explanatory Note 84.79; Mechanical Appliances; Chapter 39, Note 2(o); 3926.90.95

Dear Mr. Coleman:

This is in reference to NY 882589, issued to you on May 10, 1993, by the Area Director of Customs, New York Seaport, concerning the classification of plastic pipettes under the Harmonized Tariff Schedule of the United States (HTSUS). In the course of ruling on the classification of similar merchandise in another case, we have decided that the holding in NY 882589 is incorrect. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), 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) (hereinafter section 625), notice of the proposed revocation of NY 882589 was published December 7, 1994, in the Customs Bulletin, Volume 28, Number 49.

FACTS:

The merchandise consists of adjustable plastic pipettes, which are used in laboratory procedures to transfer from 0.1 to 5000 microliters of liquids from one vessel to another. The pipettes are equipped with removable and disposable points, which prevent direct carryover from sample to sample. The pipette possesses a plunger which, when pushed down, expels air from the tip. Releasing the plunger draws fluid into the tip. The fluid is then expelled into a separate vessel by again pushing down on the plunger. A direct-drive micrometer controls the volume measured. Precision pistons are used to guarantee accurate performance throughout each volume range.

The subheadings under consideration are as follows:

3926.90.95: [o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.3 percent ad valorem.

8479.89.90: [m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: [o]ther machines and mechanical appliances: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 3.7 percent ad valorem.

ISSUE:

Whether the plastic pipettes are classifiable under subheading 3926.90.95, HTSUS, as other articles of plastics, or under subheading 8479.89.90, as other mechanical appliances.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's).
GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

In NY 882589, the Area Director of Customs held that the pipettes were classifiable under subheading 3926.90.95, HTSUS.

It is our position that the process of utilizing the plunger to operate the pipette, and the use of pistons to control accuracy, is one that is mechanical. The user must exert force to push down the plunger to gather the fluid, then release force to hold the liquid in the pipette.

 In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, 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). In part, Explanatory Note 84.79 (p. 1314) states that:

[t]his heading is restricted to machinery having individual functions, which:

(a) Is not excluded from this Chapter by the operation of any Section or Chapter Note.
and (b) Is not covered more specifically by a heading in any other Chapter of the Nomenclature.
and (c) Cannot be classified in any other particular heading of this Chapter since:

(i) No other heading covers it by reference to its method of functioning, description or type.
and (ii) No other heading covers it by reference to its use or to the industry in which it is employed.
or (iii) It could fall equally well into two (or more) other such headings (general purpose machines).

The machinery of this heading is distinguished from the parts of machinery, etc., that fall to be classified in accordance with the general provisions concerning parts, by the fact that it has individual functions.

For this purpose the following are to be regarded as having "individual functions":

(A) Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance. . .

It is our position that the pipettes are properly classifiable under subheading 8479.89.90, HTSUS. They are not excluded from chapter 84, HTSUS, by any chapter or section notes; they are not more specifically classifiable in any other chapter of the HTSUS; and they cannot be classified any more specifically in any particular heading of chapter 84, HTSUS. Also, the pipettes are mechanical devices with individual functions, as they perform independently from any other machine or appliance.

Chapter 39, note 2(o), HTSUS, states that:

[t]his chapter does not cover:

(o) Articles of section XVI (machines and mechanical or electrical appliances).

Therefore, because the pipettes are classifiable under chapter 84, HTSUS, and are mechanical appliances, they are precluded from classification under chapter 39, HTSUS.

HOLDING:

The plastic pipettes are classifiable under subheading 8479.89.90, HTSUS, as other mechanical appliances.

NY 882589, dated May 10, 1993, is hereby revoked. In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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