Slip Op. 03-139

UNITED STATES COURT OF I NTERNATIONAL

TRADE

________________________________________ : 

### R AININ 

### I NSTRUMENT 

### C O 

### ., I NC 

### ., : Plaintiff , : Court No. 00-11-00514 v. : 

### U NITED 

### S TATES , : Defenda nt. ________________________________________: [Defendant’s motion for summary judgment is granted. Plaintiff’s cross-motion is denied.] Decided: October 24, 2003 Grunfeld, Desider

io, Le bowitz, Silve

rman & K

lesta d t LL

P ( Steven P. F lorsheim

), for Plaintiff. Peter D. Keisler , Assistan t Attorne y G eneral ; Barba

ra S. Willia

ms , Assis tant Branch Director , International

Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice ( Arthur J. G

ribbin ); Mi chae l W. Heydrich , Office of the Ass istant Chie f Counsel, International

Trade Litigation, B ureau of Customs and Border Prote ction, U.S. Department of Homeland

Security , Of Counse l; for De fendant

.

OPINION RIDGWAY, Judge: At issue in this case is the p rop er tariff classification of certain adjustable mechanical pipettes

– known as “Pipetman” pipettes – which we

re import ed from F rance t

hrough the port o f Boston

in 1 999 b y Plaintiff Rainin I nstrument Co., Inc. (“Rainin”). Rainin challeng es the decision of theCourt No. 00- 11-00514 Pag e 2

1 Effective March 1, 2003, the United Sta

tes Custo ms Servi ce was renamed the Bure au of Customs and Border Protection of the United States Dep artmen t of Homeland Security. See Reorganization Plan Modification for the Departme nt of Home land Secu rity , H.R. Doc. 108-32, at 4 (2003).

2 All refe rences are to th e 1999 ve

rsion of th e HTSUS.

3 Subhe adin g 8479.89.97, HTSUS covers “[m]achines and mechanical appliances having indiv idual func tions , not s peci fied or inc lude d else

wher e in th is cha pter ; par ts the reof : [o]t he r machines and mechanical appliances: [o]ther: [o]ther.”

4 Subheading 9026.80.6 0, HTSUS co vers “[i]ns truments a nd appar atu s fo r measuring or checking the flow, level, pressure or other variables of liquids or gases (for exa mple, flow

meters, level gauges, manometers , heat meters) , excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032; parts and accessories thereof: [o]ther instruments and appara tus: [o]ther: [o]ther.”

5 Subheading 8413.19.0 0, HTSUS co vers “[p]um ps for liqu

ids, wheth er or not

fitted wit h a measuring device; liqu id e levators; part thereof: [p]umps fitted or designed to be fitted with a measuring device: [o]ther.” United States Cust

oms Servic e (“Cust

oms”) 1 den ying its protest and c lassifying the pipe ttes as “[m]achines and mechanical appliances having individual functions,” under subheading 8479.89.97 of the Harmonized

Tariff Schedule of the United States (“HTSUS”) (1999). 2 Duties were assessed at the rate of 2.5% ad valorem . Complaint ¶ 5. 3 Rainin claims that the pipettes instead are properly classified as “[i]nstruments and apparatus for measurin

g or ch ecking

the flow, level, pr

essure o r oth er variabl es of liquids or gases (for example, flow meters, level gauges, ma nometers, he at me ters),” under subheading 9026.80.60, HTSUS, free of duty . Complaint ¶ 6. 4 In the alternative, Rainin contends that the pipettes should be classified as “[p]umps fo r liquids, whether or not fitted with a measuring device,” unde r subheading 8413.19.00, HTSUS, also duty- free. Complaint ¶ 11. 5Court No. 00- 11-00514 Pag e 3

6 The mercha

ndise at is sue consi sts of sev eral mod els of Pipetman p ipettes, i

n “vario us sizes, by rang e of capacity .” Memorandum of Law in Support of Plaintiff’s Cross Motion for Summary Judgment and in Opposition to Defen d ant’s Motion for Summary Judgment (“Pl.’s B rief”) at 3; Def.’s State ment of Facts ¶ 2; Pl.’s Response to Def.’s Statement of Facts & 2. The pipettes “are continuou sly

adjustable. For example, the volumetric capacity of the model P-20 can

be adjusted over a range of 2 to 2 0 [mic rolit ers] . . ., in inc rements o f 0.02 [micr

oliters].” Pl.’s Bri ef at 3 (citations omitted). One micr oliter (a s repre sented by

the sy mbol : L) is 1/1000 of a milliliter. Id. See generall

y Pl.’s Bri ef, Exhs. 1 (sample o f a Pipetma n pip ett e), 2 (published description of Pipetman pipettes). Jurisdiction lies under

28 U.S.C. § 1581(a) (1994). Customs’ classification decisions are subject to de novo review pursuant to 28 U.S.C. § 2640 (1994). For the reasons discussed below, the pipettes a

t issue ar e proper ly c lassifie d as “[m]achines and mech anical appliances having individual functions,” under subheading 8479.89.97, HTSUS. According ly, the Government’ s motion for summary judgme nt is granted, and Rainin’s cross-motion is denied.

I. Background The merchandise at issue is a mechanical device ma de up of a n

umber of dif ferent mechanical parts, “including plungers, pistons, adjusting dials, and tip ejectors, a ll of which are utilized to perfo rm a func tio n .” Defendant’s Statement of Material Fa cts (“Def.’s Statement of Facts”) ¶ 3 (cita

tions omitte d); P lain tiff’s Re sponse to D efenda nt’s State ment of Ma

terial F acts (“Pl.’s Response to Def.’s Statement of Facts”) ¶ 3. Each Pipetman p ipette is fitted with an adjustable micrometer that allows the user to set the desired volume of liquid to be drawn. Plaintiff’s Statement of Material Facts (“ Pl.’s Statement of Facts”) ¶ 4; Defend

ant’s Res ponse to Pla

intiff’s Statemen t of Mater

ial Fac ts (“Def

.’s Respo nse to Pl.’s Statement of Facts”) ¶ 4. 6 Genera lly, the pipet

tesCourt No. 00- 11-00514 Pag e 4

function through air displacement. . . . [A] vacuum i s created by expelling air from the pipet te’s t ip th rough depression of the push button plunger on the pipette. The tip is then imme

rsed in th e liquid

of the sou

rce con tainer, and the pl

unger is released, causing the sourc e liquid

to be suck

ed into the

pipette ti p. The liqu

id is then expelled into the rec eivin g c onta iner by ag ain depressing the plunger, which r eleases the vacuum on the liquid in the pipette tip. Pl.’s Statement of Facts ¶ 6. See also Def.’s Response to Pl.’s Statement of F acts ¶¶ 4, 6 (same); Pl.’s Statement of Facts ¶ 4 (same). The pipettes are therefore capable of “pick[ing] up a preselected quantity of liquid and permit[ting] the transfer of tha t volume of

liquid to another vessel.” Def.’s Stateme nt of Facts ¶ 4 (citation omitted). Thus, they may be used both to measur e and t o transfe r fluids. Fi na ll y, each pip ette “[w]orks in depende ntly [;] it does not h ave to work in c onjunctio n with another machine, instrument or apparatus to perform its function of picking up . . . liquid and depositing it in another vessel.” Def.’s Statement of Facts ¶ 5 (citat ions omitted). See also Pl.’s Response to Def.’s Statement of Facts ¶ 5.

II. Standard of Review Und er U SC IT Rule 56, summary judgment is appr opriate where “there is no genuine issue

as to any materi al fact a

nd . . . the moving party

is entitled to . . . judgment as a matter of law.” USCIT R. 56(c). Customs class ifica tion rulin gs are re viewed th rough a two-step process : first, construing the relevant tari ff he adings, which is a question of law; and second, determining whether the mercha ndise is proper

ly classified under

the headings, which is a question of fact. Bausch & L omb,Court No. 00- 11-00514 Pag e 5

Inc. v. United States , 148 F.3d 1363, 1365 (Fed. Cir. 1998) ( citing Universal Elecs. Inc. v. U nited States , 112 F.3d 488, 491 (Fed. Cir. 1997)). “[S]ummary

judgmen t is appro priate when the re is no g enuine di spute as to the underlying factual issue of exactly what the mer chandise is.” Bausch

& Lo mb , 148 F.3d at 1365 (c it ations omitted). Although the parties here arg ue for different classifications, they do not disagree as to the nature of the Pipetman pipet tes. See also Memorandum in Support of Defendant’s Motion for Summary Judgment (“Def.’s Brief”) a t 7-8; Pl.’s Brief at

14. The case is therefore ripe for summary judgmen t. While Customs classification decisions do not merit Chevrondefere nce, the y a re entitl ed to “a respect proportional to [their] ‘power to persuade.’” United States v. Mead Corp. , 533 U.S. 218, 235 (2001) ( citing Christens en v. Har ris County

, 529 U.S. 576, 587 ( 2000); Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944)) . “That p ower to persuad e depends on the th orough ness evid ent in the classifi cation r

uling, th e validity

of its r easoning , it s consistency with ear lier and later pronounc ements, the formality attenda nt the particular ruling, and all those factors that give it power to persuad e.” Mead Corp. v. United States , 283 F.3d 1342, 1346 (Fed. Cir. 2002) ( citing Mead Corp. , 533 U.S. a

t 219-20; Skidmore , 323 U.S. at 140). Fi na ll y, the court has “[an] independent responsibility to decide

the legal issue regarding

the proper meani ng and scope of the HTSUS terms.” Mead Corp. , 283 F.3d at 1346 ( citing Rocknel Fastener, Inc. v. United States , 267 F.3d 1354, 1358 (Fed. Cir. 2001)). See also Rollerblade, Inc. v. United States , 112 F.3d

481, 484 (Fed. Cir . 1997) (n oting the court’ s d ut y to “reach the correct decision”) ( quoting

28 U.S.C. 2643(b)).Court No. 00- 11-00514 Pag e 6

7 The World Custom s Orga nization’s Harmonize d Commodity Descrip tion and Coding Syst em: Explanatory Notes (2d ed. 1996) (“Explanatory Notes”) function a s an interpretative supplement

to the HTSUS. While the Explanatory Notes “do not co nstitute controlling legislative history,” they “ar e intended to clarify

the scope of HTSUS subhead ings and offer g uidance in interpreting its subheadings.” Mita Copystar Am. v. United States , 21 F.3d 1079, 1082 (Fed. Cir. 1994) ( citing Ly

nteq, Inc. v. United States , 976 F.2d 693, 699 (Fed. Cir. 1992)). See also Guidance for Interpretation of Harmonized System , 54 Fed. Reg. 35,127 (Aug. 23, 1989). III. Analysis The General Rules of

Interpretation

(“GRIs”), applied in orde r, provide a framework for the classification

of merchandise under the HTSUS, and are considered statutory provisions of law for all purposes. See North

Am. Processing Co. v. United States , 236 F.3d 695, 698 (Fed. Cir. 2001); Orlando Food Corp. v. United States , 140 F.3d 1437, 1439 (Fed. Cir. 1998). “The structure of the GRI[s] controls the point at which each rule comes into play.” Pillowtex Corp. v. United States , 171 F.3d 1370, 1374 (Fed. Cir. 1999) ( citing Mita Copy star Am. v . Unit ed St ates , 160 F.3d 710, 712 (Fed. Cir. 1998)). Most goods are classified pursuant to GRI 1, which provides that “classification shal l b e determined

accord ing to the terms of th e headings and any relative section or chapter notes and, provided such headings or note s do not otherwise require, according to the f ollowing provisions [Rules 2 through 6].” The intent of GRI 1 is “to make it quite cle ar that the terms of a heading and any rela tive Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification.” Explanatory Note s at GRI 1(V). 7 Se e also Orlando Food Corp. , 140 F.3d at 1 440 (“O nly after de

termining that a product is classifiable under the heading should the court look to the subheadings to find the correct classifica tion for the merchandise.”).Court No. 00- 11-00514 Pag e 7

8 Rainin contends that if the pipettes are classifiable under bot h he ading 8413 and heading 8479, headi ng 8413 prevai ls, based on GRI 3(a). Ac cording to GRI 3(a ), “[w]hen . . . goods are, prima facie , classif

iable und er two or more hea

dings, . . . [t]he hea

ding whi ch provid

es the mos t specific description shall be preferred to heading s providing a more genera l descri ption.” Ra

inin reasons that – as between heading 8413 and hea ding 8479 – classification under he ading 8 413 would be appropriate, because it is “[t]he heading which provides the most specific description.” Pl.’s Brief at 13 ( quoting

GRI 3(a)). But, if the pipettes are prima faci e classifiable under heading 8413, there is no ne ed to resort to GRI 3 . GRI

1 provides that classification is determined “according to the terms of the headi ngs and any rela tive section or

chapter notes.” By

its terms, heading 8479 classifies goods “not specified or included elsewhere” in chapter 84, w hich includes goods covered by heading 8413. Furth er, “ a machine or appliance which answers to a description in one or more of the headi ngs 8401 to 8424 and at the same t ime t o a des cript ion i n one o r more of the headi ngs 8425 to 8480 is to be cla ssified un der the a ppropria te headi ng of the former g roup and not the la tter.” N ote 2 to Chapter 84, Sec tio n XVI, HTSUS. See also Explanatory Note 84.79 (providing that heading 8479, HTSUS “is restricted to machinery having individual functions, which: (a) [i]s not excluded fromthis Chapter by the opera tion of any Section or Chapter Note . . . and (b) [i]s not covered more specific ally

by a hea ding in any othe

r Chapter of the Nomenclature . . . and (c) [c]annot be classified in any other par

ticular heading of this Chapter . . . .”) (emphasis omitted).

9 Moreover, if the pipettes can be classified as “pumps” under heading 8413, they would not be classifiable under Rainin’s primary proposed classification – heading 9026 (“[i]nstruments and apparatus for mea suring . . . liquids” ), beca use merc handise c lassifia

ble u nder hea

ding 841 3 is expressly excluded from classification under Chapter 90. See Note 1(g) to Ch apter 90, Section XVIII, HTSUS (stating that Chapter 90 does not cover “ [p]umps incor

porating measurin g devic es, A. Heading 8413, HTSUS Customs classified the pipettes at issue here under heading 8479 – the “bas ket” provision of chap ter 84 – which covers, in relevant part, “[m]achines and mechanica l appliances having individual functions, not specified or included elsewher e in this chapter .” (Empha sis added.) If –

as Rainin postulates – the pipettes can be classified under heading 8413 8 (or, for that matter, under any other he ading w

ithin Chapt

er 84), C ustoms’ cl assific atio n under heading 8479 would, by definitio n, be inco rrect. 9Court No. 00- 11-00514 Pag e 8

of heading 8413"). See also Pl.’s Brief at 12. See gen erally Sec ti on II I.B (discussing Rainin’s argument for classification under hea ding 9026).

10 The Governm ent furth er empha sizes that – in addition

to the devices at issue here – Ra inin also sells devices specifically called “peristaltic pumps,” which are “substantially different from the [imported] Pipetman pipettes” and which “use [ ] a series of rollers to continuously pump liquids.” Def.’s Response Brief at 14. Heading8413 covers, in relevant part , “[p]u mps for liquids, whether or not fitted with a measuring device.” The Government maintains that the Pipetman pipettes a

re not “p umps” with

in the meaning of heading 8413, HTSUS. See Def.’s Brief at 6-7, 12-15; Def.’ s Response Brief at 2, 14-18. The Government makes much of the fact that

the pipet tes here “are no t known, r

eferr ed to

or commercially c onsidered to be pumps.” Def.’s Brief at 14. See also Memorandum in Opposition to Plaintiff’s Motion for

Summary

Judgment and Reply to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (“D ef.’s Response Brief”) at 14 n.8 (noting that “[n]either

Rainin

nor anyone e lse refers to Pipetman pipettes as pumps”). 10 A review of the record confirms that , indeed, the pipettes at issue were not marketed as “pumps.” See , e.g. , Pl.’s Bri ef, Exhs. 1 (sample of a Pipetman pipette), 2 (published description of Pipetman pipettes). Even Rainin concedes that the pipettes “are not known as or referr ed to as ‘pumps.’” Pl.’s Brief at 9. Yet, while the marketing of merchandise is a fa ctor to be con side red in de termining its classification ( see Def.’s Brief at 1, and cases cited there), it is not dispositive. See Russ Berrie & Co. v. United States , 76 Cust. Ct. 218, 226 (1976) ( citing S.Y. Rhee Imps. v. United States , 486 F.2d 1385, 1387 (CCPA 1973) ; Novelty I mp. Co. v. UnitedStates , 53 Cust. Ct. 274 (1964 ); United States v. Ignaz Strauss & Co. , 37 CCPA 32 (1949)).Court No. 00- 11-00514 Pag e 9

11 The Explanatory Notes to heading 8413 also explain that “the mac hines of [th at] heading can be subdivide d according to their sy stem of operation,” and list the different ty pes of pumps classifi able under heading 8413. The Government asse rts that, of the pumps listed in Explanatory Note 84.13, the

Pipetman p ipettes mo st close ly rese mble “reciprocating positive displacement pumps.” Def.’s Brief at 13-14. L ike the pipettes, reciprocating positive d

isplace ment pumps

“use the linear su

ction or f orcing action of a piston or

plunge r driven with in a cy linder.” Explanatory Note 84.13(A). However, reciprocating positive displacement pumps have inlets and outlets, which are regulated by

valves, which the pipettes here lack. Def.’s B rief at 14. Rainin cites Hancock Gross, Inc . v. United States , 64 Cust. Ct. 97 (1970) as authority for the proposition that “pist

ons, valve s, [and] othe

r moving parts” are not “an essential attribute of all types of pumps.” 64 Cust. Ct. at 101-02. But the Government does not he

re claim that all pumps must have valves. R

ather, t he Gover nment ar gues tha t – consiste

nt with the

Explanator

y N otes – a pu

mp employing

the reciprocating piston principle (which is there basis of the pipettes at issue) must have valves in order to function and be classified as a pump. Def.’s Respo nse Brief at 15. Hancock involved a “venturi tube” device, and is therefor e not applicable here. As the Gove

rnment e xplains, the

require ment for valves in reciprocating positive displacement

pumps “is logical because, in order to function as pumps, they must be capable of pumping liquid from a source (input) to a destination (output).” Def.’s Response Brief at 1 5-1 6. In the instant case, “[b]ecause the pipettes have no valves, o nce the piston pulls the liquid into the cylinder

. . . the pipette must be removed from the source container and placed into the destination container before liquid can be ejected.” Def.’s Response Brief at 16. In short, “[a] pump employ ing a reciprocating piston principle must have valves in order to be classified as a pump because it is the valves that enable this particular device to con tinuously displace volumes of liquids.” Id. As discusse d above, the pipet tes at issu e lack a ny s uch valve s. Rainin contends that “the tariff provision for pumps has been given a broad meaning, and includes article s that are

not refe rred to a s pumps.” D ef.’s B rief at 9 . As the Go vernmen t notes, however, the primary c

haracteristic of a pump (at least fo r tariff classifi cation pu

rposes) is its use for “c on ti nu ou sl y di sp la ci ng vo lu me s o f l iq ui d. ” P l. ’s Br ie f a t 1 3. Th e E xp la na to ry No tes to heading 8413 expressly state that the heading covers devices

“for ra ising or otherwis e continuou

sly displacing volumes of

liquids . . . whether

they are ope rated by hand or b y a

ny k ind of pow er unit, integral or otherwise.” Explanatory Note 84.13 (emphasis added). See also Def.’s Brief at 13; Def.’s Response Brief at 16-18. 11Court No. 00- 11-00514 Pag e 10

Rainin seeks to m

inimize the

“continu ous displa

cement” criteri on by

emphasi zing tha t it derives from the E

xplanator y N otes, and by arg

uing that the Explanatory Note s are not “conclusive.” Pl.’s Brief at 11. However, the Explanatory Notes cannot be so readi ly d is missed. The trade

co mm un it y, Customs an d the courts all have recognized that they are a vital supplement to the HTSUS, serving to clarify the scope of headings and to offer guidance in interpretation. See , e.g. , Mita Copystar

Am. , 21 F.3d at 1082 ( citing Ly nteq, Inc. v. United States , 976 F.2d 693, 699 (Fed. Cir. 1992)). Rainin asserts broadly tha

t the “continuous displacement” criterion is inconsistent with “ ca se law and lexicographic authorities.” Pl.’s Brief at 11. B ut nothing in the dictionary def initions cited in Rainin’s briefs can be read to sugg est that the continuous displace ment of liq

uid is not a

defining charac teristic of a pump. See generally Pl.’s Brief at 10-11 (quoting various dictionary definitions). Rainin’s reliance on Hancock Gross, Inc . v. United States , 64 Cust. Ct. 97 (1970) and Fedtro, Inc. v. United States , 65 Cust. Ct. 35 (1970) is similarly misplaced. See Pl.’s Brief at 9-10; Plaintiff’s Reply to Defen dant’s Re sponse in O

pposition to

Plaintiff ’s Cross Motion for Summary Judgment (“Pl.’s Reply Brief

”) at 8. Nothing

in those cases indicates that the “continuous displacement” of liquid is not a defining characteristic of a pump. Fi na ll y, Rainin contends that, even if the “continuous displacement” of liquid is a defining charac teristic of a pump, a

user of a Pipetman pipet “can repetitively draw measure d amounts o f fluid froma source container and deliver the same to a rece iving co ntain er.” Th us, Rainin a sserts, Pipetman pipettes “are capable of . . . continuo us use.” P l.’s Bri ef at 11. Rainin str ains to anal ogiz e “the repetitive depression and release of the pu sh butt on plunger on the pipette” to “the repetitiveCourt No. 00- 11-00514 Pag e 11

pumping of the lever on a classic ha nd ope rated water pump, or the repetitive squeezing of the cylinder or chamber on the ‘portable siphon pumps’ involved in Fedtro .” Pl.’s Brief at 11. But the attempt a t analog y f ails. The Government points out that squeezing the cylindrical por table siphon pump at

issue in Fedtro continuou

sly displace d water f

rom one c ontainer

to another –

specifically, in the c ourtroom demonstration , from a pitcher to a cup. See Def.’s Response Brief at 17 (descr ibing operation o f Fedtro pump). In contrast, the pipettes at issue her e “are only

capable of intermitte

ntly transferring minute amounts of liquid from one container to another, and it is the physical movement of the pipettes from one c ontainer t o another t

hat effec ts the trans

fer of liqui

d , not a pump ing mechanism within the pipettes.” Def.’s Response Brief at 17 (e mphasis added). See also Def.’s Brief at 13 (noting that the pipettes “do not displace volumes of liquid continuously, but rathe r displace a volume of liquid intermittently as part of their normal operation,” and that, “unlike a pump, which is capable of continuous displacement of liquids at one location and normally doe s so as part of its routine operation, these pipettes are designe d for discrete displacement of fluids”). The Governm ent corr

ectly observe s that “[i]nte

rmittently carry ing minut e amounts of liquid froma source container to a d estin ation con tainer” simply is not “the

equivale nt of cont inuously displacing volume s of liquid s by means of a pump.” Id . at 18. Further, “[w]ith the Pipetman pipettes, the transfer of the liquid requires thephy sical movi ng of the pipette from one containe r to the other, an operation not necessary with a pump.” Id

. As the court

stated in Fedtro , classif

ication in this case is “controlled by what the imported article was constructed

and designed to do . . . .” Fedtro , 65 Cust. Ct. at 44. Pipetman pipettes wereCourt No. 00- 11-00514 Pag e 12

12 If the pipettes are classifiable as “[i]nstruments and apparatus for measur ing . . . liquids” under heading 9026, HTSUS, then th ey cannot also be classified as “[m]achines and mechanical appliances having individual functions” under heading 8479 , HT SUS. See Note 1(m) of Section XVI, HTSUS (noting that Section XVI, which includes he ading 8479, HTSUS, “does not cover . . . [a]rticles of chapter 90”). See also Pl.’s Brief at 12-13. not construc

ted or de signed a s “pumps” within the

meanin g of heading 8413, and cannot be classified thereunder. B. Heading 9026, HTSUS Rainin’s pr im ar y claim is that Pipetman pipettes are pr operly classifia ble under heading 9026, HTSUS, which covers “[i]nstruments and apparatus for measuri ng o r checking the flow, leve l, pressure or other variable of liquids or gases (for exa mple, flow

meters, l evel ga

uges, ma nometer s, heat meters), excluding instruments and apparatus of heading 9014, 9014, 9028 or 9032; parts and accessories thereof.” (Emphasis added.) 12 To that end, Rain

in argu es – in sum and substance – that volume is a variable of liquids, and that t he pipett es are i nstrumen ts whose p rimary

purpose i s to measure the volume of liquids. See Pl.’s Brief at 4-6; Pl.’s Reply B rief at 2-5. The Government denies that the pipettes’ primary purpose i s measurement, and asserts that the pipettes a

re instea d used pri ncipally to move and dispense liquids. See, e.g. , Def’s Brief at 6, 8-9; Def.’s R esponse B rief at 1 2-13. Spe cifical ly, accord ing to the Governm ent: [T]he Pipetman [pi

pettes] onl

y me asure[ ] in t

he sense that when the pipettes are adjusted for a specific volume, [tha

t] volume is picked up and dispensed. However, the Pipetman pipettes have not been used to “measure” in the sense of determining anunknown v olume. . . . In the case of the Pipetma

n [pipett e], i t is not used to ascert ain the quantity of a liquid, but instead is used to deliver a selected amount of liquid.Court No. 00- 11-00514 Pag e 13

13 Rainin argues that heading 9026 does not include the term “process,” and that the Explanatory

Notes “are not controlling legislative history.”

Pl.’s Brief at 7. However, as discussed in Section II I.A above, the Explanatory Notes – while not controlling – are highly

authoritative. See also Def.’s Brief at 6-7 ( discus sing history and pur pose of, and weight customarily accorded to, Explanatory Notes). Def.’s Brief at 9. Rainin rejects the Gove rnment’s argume nt as a“d istinction without a difference.” Pl.’s Brief at 5. Rainin contends that measuring devices can be use d both “to measure a predetermined qu an ti ty” and to “determine unknown quantities.” Id. As an example , Rainin ci tes a ca rpenter ’s rule which, it assert s, “is primaril y us ed to mea sure a pr

ecise le ngth of l umber, a lthough i t could also be used to determine the unknown length of [a] piece of lumber.” Id . Rainin analogizes the carpenter’s rule to the pipettes at

issue here, arguing that “[t]o the same extent the pipet te is prima

rily used to

measure a precise volume of liquid, although it could also be used to de termine t he unknow

n liquid volume of a container.” Id

. Whatever the valid ity of Rainin’ s example a

nd analog y, t here is – as the Government notes

– a larg er point: Even if the measurement of a variable ( i.e. , the volume) o f liquids w ere the purpose of the pipet

tes, the p ipettes st

ill would no t be cla ssifiable under heading 9026, because the Explanatory

Notes for the heading indicate that the var iables measured by

the devices classified under this heading are process variables. See Explanatory Note 90.26 (noting tha t heading 9026 “covers instrumen

ts and app aratus f

or measu ring or checkin g the fl ow, leve l, pressu

re, kinetic energy

or other process variables of liquids or gases.” (Emphasis added.) See also Def.’s Brief at 9; Def.’s Response Brief at 3-4 13 The Governm ent’s pos ition is butt ressed b y th e exem plars named in heading 9026 – flowCourt No. 00- 11-00514 Pag e 14

meters, level gauges, manometers and heat meters. The pipettes at issue are fundamentally different in nature and function from the enumerated devices. Unlike the exemplars, the pipettes are not used to (and cannot be used to) measure the process (dy

namic) variables of liquids. Def.’s Brief a t 11-12; Def.’s Response Brief at 7-8. The Pipetman p ip ettes thus are not instruments of measurement within the meaning of heading 9026, because they do not measure the type

of variable to which

the provision refers, and because they have a

different specific primary function. Accordingly , t he y c annot be classified thereunder. C. Heading 8479, HTSUS Heading8479, HTSUS classifies, in relevant part, “[m]achines and mechanical appliances having individual functions.” According to the Explanatory Notes, “[t]his heading is restricted to machinery

having individual func tions . . . . For this purpose the following are to be reg arded as having ‘individu al funct

ions’: ( A) Mechanical dev ices, with or without motors or other driving force, whose function can be perf orme d distinctly from and independently of any other

machine or appliance.” Explanatory

Note 84.79. Customs’ rulings here are persuasive, and are the refore entitled t o defer ence. A s Customs has found, the pipettes are mechanical dev ice s with individual functions (i.e., measuring and transferring

liquids) that fun ct ion “independently of a ny other machine

or appliance.” See HQ 957301 (Jan. 18, 1995) (“[T]he process of utilizing the pl unger to opera te the pip ette, an

d the use of the piston s to co nt ro l a cc ur ac y, is one that is mechanical. The user must exert force to push down the plunger to gather the fluid, then releas e force to hold the liquid in the pipette.”). See also NYCourt No. 00- 11-00514 Pag e 15

F81392 (Jan. 20, 2000) (classifying “mechanical pipettes” imported by Rainin under heading 8479, HTSU S)

. See gen erally

Def.’s Brief at 3, 12, 16-18. Finally , the pipettes are “not excluded from [Chapter 84, HTSUS] by the opera tion of any Section

or Chapter Note,” they

are “not covered more specific ally

by a heading in any other Chapte

r [of the HTSUS], ” and the

y “ [c]annot be

classifi ed in any other pa

rticular heading of [Chapter 84, HTSUS].” Explanatory Note 84.79. Thus , the classification of the Pipetman pipettes is properly determined by the te

rms of heading 8479, HTSU S.

IV. Conclusion Customs properl

y c lassifie d the pipe

tt es here at issue as “[m]achines and mechanical appliances having indi vidual functio ns,” under subheading 8479.89.97, HTSUS. The Government’s motion for summary judgme nt is therefore granted, and Rainin’s cr oss-motion is denied. Ju dg me nt wi ll en te r a cc or di ng ly.

___________________________________ Delis sa A. R idgway, J udge Decided: October 24, 2003 New York, New York