CLA-2-68:OT:RR:NC:N2:237
Ms. Beata K. Spuhler
Drinker, Biddle & Reath, LLP.
191 North Wacker Drive - Suite 3700
Chicago, IL 60606-1698
RE: The tariff classification of a 3M Organic Vapor Diffusion Monitor from Canada.
Dear Ms. Spuhler:
In your letter dated September 12, 2012, on behalf of the 3M Company, you requested a tariff classification ruling. You provided a sample and product literature for our review.
Part Number 3510 3M Organic Vapor Diffusion Monitor is described as a sampling device designed to passively measure exposure to various types of organic vapors around a work or job site. The sample consists of a small disk-shaped sorbent carbon wafer (3cm x 0.05 cm), inside a small cylinder-shaped plastic housing sealed by a vapor permeable film with snap-off ring (4.5cm x 1.1cm), and metal alligator clip. The device comes hermetically sealed in a pop-top metal canister (6.2cm x 5.5cm) along with a snap-on elution cap and labels for mailing. The sorbent carbon wafer collects and holds the organic vapors until they are desorbed for analysis. In order to perform the analysis, the carbon wafer is removed from the monitor housing and desorbed with a solution. The solute containing the organic vapors is then analyzed by a chromatograph. The carbon wafer imparts the essential character of the article.
Regarding your proposed classification in HTSUS 9027.90.8400, which provides for, inter alia, Parts and accessories of non-electrical, non-optical instruments or appliances of 9027.20 (chromatographs and electrophoresis instruments), we do not agree.
1. The layer of carbon, which is apparently the only active element in the import, is twice removed from the equipment that actually performs an eventual chemical analysis since the carbon layer is not directly examined as we understand the process. Instead, it is sent to a laboratory, routinely miles away, for the actual analysis, but first another specialized, sophisticated device washes out in a controlled way the gas molecules which have stuck to the carbon. That effluent is what is then analyzed.
2. Although the import would be pointless unless there is an analysis of the effluent removed from the carbon layer at some point, you do not provide any evidence that the import is identifiable as suitable for use solely or principally with chromatographs or electrophoresis instruments, as opposed to another method of analysis, Furthermore, there is no indication at all that the instrument that would perform the eventual analysis is neither electrical per Chapter 90, HTSUS, Additional U.S. Note 2, nor optical per Chapter 90, HTSUS, Additional U.S. Note 3.
3. More generally while the import is used in the “broader activity” of chemical analysis, it is not a part or accessory of a chemical analysis instrument, noting the distinction in Court of Appeals for the Federal Circuit 01-1049, dated March 5, 2002.
4. The function of the import to capture airborne matter for later analysis is similar to that for the agar strips for which classification in HTSUS Chapter 90 as a part or accessory was considered and rejected in Headquarters Ruling Letter 957439, date April 18, 1995.
The 3M™ Organic Vapor Monitor 3510 is said to be comprised of a sorbent pad with an active ingredient of charcoal, polypropylene film, petrafluoroethylene resin, resin, nylon, steel, brass and polyethylene. It has been proposed that the monitor be classified in subheading 8479.89.90, Harmonized Tariff Schedule of the United States (HTSUS). It should be noted that the proposed HTSUS number is obsolete. The current HTSUS number is subheading 8479.89.98, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof: Other machines and mechanical appliances: Other: Other”.
Two HQ rulings have been put forth as justification for the proposed classification in heading 8479, HTSUS, i.e., HQ ruling 088242 dated November 27, 1990 and HQ 087597 dated November 27, 1990 (which both revoked HQ 084210 dated July 12, 1989). The monitor in question can be distinguished from the sampling device in HQ ruling 088242 as the sampling machine described in the cited ruling was said to contain a mechanical feature, i.e., an impeller assembly. Because HQ 087597 dated November 27, 1990 predates September 11, 2001, the background materials are not available in this office. Thus, we are unable to confirm whether the M.I.C samplers described in HQ 087597 contained mechanical features. For this reason, we consider this ruling inconclusive. However, this office does note that research conducted on the Internet has found M.I.C. samplers described as incorporating mechanical features such as fan assemblies (see http://www.epa.gov/glnpo/lmmb/methods/orgprec.pdf).
This office does not dispute the fact that the sampling taking place in the monitor involves diffusion. However, on the 3M website (http://www.3m.com/product/information/Organic-Vapor-Monitor.html), the 3M™ Organic Vapor Monitor is described as a “passive diffusion personal air sampling monitor”. Unlike active diffusion, with passive diffusion, there is no facilitating factor involved in the movement of molecules/particles or any input of energy for the diffusion to take place. The molecules/particles spontaneously move from a region of higher concentration to a region of lower concentration, i.e., a movement down a concentration gradient, on their own. By facilitating factor, it is meant a mechanical device such as a pump. The monitor in question does not contain any mechanical components (such as impellers, pumps, blowers or rotors) to facilitate the mixing of vapors.
No evidence has been presented which shows that the monitor is commercially bought and sold or regarded in the trade as a machine. The court has stated that mechanical complexity alone is not sufficient to make an article a “machine”. To be a machine, an article must do work in a tariff sense, i.e., make or act on something outside itself. Trans Atlantic Co. v. United States, C.D. 2678, aff'd. C.A.D. 909 (1967) noted/HQ 960360 noted.
The monitor in question does not do work in a tariff sense nor does it possess any mechanical features. Thus, in this office’s opinion, classification in heading 8479, HTSUS, would not be appropriate as the 3M™ Organic Vapor Monitor 3510 is not a machine. Therefore, the monitor must be classified elsewhere.
The applicable subheading for Part Number 3510 3M Organic Vapor Diffusion Monitor will be 6815.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Non-electrical articles of graphite or other carbon. The rate of duty is free.
Your product may be subject to prohibition and recall under the laws and regulations administered by the CPSC. You are advised to contact the CPSC to determine if your merchandise complies with pertinent safety standards and regulations. Import compliance information may be obtained by contacting the Office of Compliance, Consumer Product Safety Commission, 4330 East West Highway, Bethesda MD 20814-4408, by calling (301) 504-7912 or by e-mail contact through their website at www.cpsc.gov.
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 World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Cantone at (646) 733-3038.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division