December 10, 2009 CBP Bulletin Notice on Classification of Mass Flow Controllers

Proposed revocation of ruling; proposed revocation of treatment. CBP is proposing to revoke one ruling on the classification of mass flow controllers. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received an interpretive ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by January 11, 2010, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

Mass flow controllers. The Mass Flow Controller ("MFC") is described as being a closed-loop device that sets, measures, and controls the flow of gases or liquids. The MFC is said to operate automatically according to a complex system of internal applications. The MFC consists of five main components: the base, a thermal sensor, a bypass (or flow splitter), a control valve and a printed circuit board (or electronic assembly). The base provides the platform on which all other components of the MFC are mounted and contain the channels that form the main flow path of the gas. The thermal sensor is designed to respond to any changes in gas flow conditions. The bypass maintains a constant ratio of gas flow, measuring the portion of gas that passes through the sensor. The control valve establishes the flow of gas by responding to a signal that compares the actual flow to the set point. The printed circuit board system includes a bridge circuit, an amplifier circuit and a comparator circuit (or central processing unit ("CPU")) wherein output indications and command signals are processed. The output signal is compared with the external set point signal. Any resulting error signal directs the control valve to open or close to maintain a constant flow at the set point.

CBP is proposing to issue HQ 065718, in order to revoke NY R01762, and reclassify the mass flow controllers under HTS 9032.89.6060 as "Other Flow and liquid level control instruments," rather than under HTS 8481.80.9015 as "Regulator valves, self-operating, for controlling variables such as temperature, pressure, flow and liquid level."

CBP proposes this change as a correction based largely on the Explanatory Notes (ENs).

The ENs to heading 8481 state that: "Combinations consisting of a valve and any measuring, checking or automatically controlling instrument or apparatus of HTSUS headings 9026 or 9032 remain in this heading if the instrument or apparatus is mounted directly on the valve, and providedthe combined article has the essential character of an article of heading 8481. If notsatisfying these conditions, they are classified in heading 90.26 or in heading 90.32."

CBP finds that the subject MFC does not satisfy the two-part analysis in the ENs to heading 8481. The essential character of the subject MFC directs and analyzes the gas flow, features which are beyond the scope of heading 8481. Also, the measuring instrument is not mounted directly on the control valve. In the instant case, the measuring and checking devices are housed in a common unit with the valve. As such, the subject MFC is not classifiable in heading 8481.

While CBP has in previous rulings classified "combination" automatic control valves in heading 8481, those decisions were in part based on the fact that the term "valve" was incorporated into the product's name and thus provided for eo nomine in heading 8481. Also, while capable of sensing changes in variables and regulating flow rate, these articles were distinguishable from articles of heading 9032.

The ENs to heading 9032 state that:

"Apparatus for automatically controlling liquids or gases or temperature, within the meaning of Note 7 (a) to this Chapter, consists of [the following] three devices forming a single entity or in accordance with Note 3 to this Chapter, a functional unit."

It is noted that advancements in technology have caused the once separate components, (flow meter, controller and valve) to become consolidated into one single device. As such, those aspects of the MFC which measure and monitor flow activity are inseparable from those aspects which regulate the gas flow. The subject MFC has (A) a measuring device: the sensor/bypass combination which measures and checks the flow of gas, (B) a control device: the printed circuit board system which interprets the output signal in light of the desired set point and ultimately directs (C) the starting and stopping device: the printed circuit board ("PCB") which provides the detailed instructions to the control valve to open or close to maintain a constant gas flow at the set point.

As such, the subject MFC meets the description of an automatic control apparatus as set forth in ENs to heading 9032. Moreover, because the subject MFC contains each of the three devices set forth above, the MFC therefore is classifiable as an automatic regulating or controlling apparatus within the meaning of Note 7 (a) to Chapter 90.

CBP now proposes that by application of GRI 1 and Legal Note 7 (a) to Chapter 90, the Mass Flow Controller is correctly classified in subheading 9032.89.6060 which provides for: "Automatic regulating or controlling instruments and apparatus: Other instruments and apparatus: Other: Other: Other: Flow and liquid level control instruments."

Proposed: 9032.89.6060, 1.7%; Current: 8481.80.90, 2%

December 10, 2009 CBP Bulletin (Vol. 43, No. 50) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/