CLA-2 CO:R:C:M 950405 KCC
Mr. James Alberdi
A.J. Arango, Inc.
P.O. Box 3007
Tampa, Florida 33601
RE: Gas Detector Tubes; Gas Dosimeter Tubes; heading 3822;
laboratory reagents; 088812; 089430; Pharmacia Fine
Chemicals; Burrows Equip. Co.; instruments for physical and
chemical analysis; use provision; 084210; EN 90.16;
subheading 9031.80.00; EN 90.31
Dear Mr. Alberdi:
This is in reference to your letter dated August 29, 1991,
to Customs in Tampa, Florida, on behalf of Sensidyne Inc.,
concerning the tariff classification of gas detector tubes, gas
dosimeter tubes and smoke test tubes under the Harmonized Tariff
Schedule of the United States (HTSUS). Your letter and samples
have been forwarded to this office for a reply. The tariff
classification of the smoke test tubes was addressed in NYR
866645 dated September 24, 1991. We regret the delay in
responding to your request.
FACTS:
The merchandise at issue is Sensidyne's gas detector tubes
and gas dosimeter tubes. The gas detector tubes and gas
dosimeter tubes are used to detect levels of certain gases or
vapors in the air.
The gas detector tubes contain a reagent which is
specifically sensitive to a particular vapor or gas. These
reagents are contained on fine grain silica gel, activated
alumina, or other absorbing media inside a constant-inner-
diameter, hermetically-sealed glass tube.
The tubes are the "direct-reading" type, with calibration
markings right on the tube, so measurements can be made as simply
and precisely as reading a thermometer. The gas detector tubes
have an accuracy of +/- 25 percent and are used with a piston-
type volumetric pump. The user snaps off the breakaway ends of a
tube and inserts the tube into the hand-held pump. As the pump
handle is pulled out a precisely measured volume of ambient air
is drawn inside the tube where it contacts the reagent and, if
the particular gas or vapor is present, the reagent instantly
changes color. This reaction provides a length of stain whereby
the farther the color-stain travels along the tube, the higher
the concentration of the particular gas or vapor is in the air.
The user notes the calibration mark on the tube, thereby
determining the concentration amount of the sampled gas or vapor
in the air. The gas detector tubes provide a reading for only
the current moment.
Sensidyne submitted information from the American Industrial
Hygiene Association's Direct Reading Indicator Tube Manual
regarding the normal accuracy of the direct-reading tube. This
manual states that "the expected error, expressed as a percent of
reading for detector tubes is generally considered to be +/- 25
percent." Also submitted is the Occupational Safety and Health
Administration Field Manual (77-8008, Appendix 1-A dated December
19, 1990) which indicates that the detector tubes/pumps are
screening instruments which may be used to measure over 200
organic or inorganic gases and vapors.
The dosimeter tubes also detect vapors and gases. They are
not designed to detect radiations. The tubes provide on the
spot, time weighted average (TWA) monitoring of contaminants in
air. Like the gas detector tubes, the dosimeter tubes are also
the "direct-reading" type. Each tube contains a reagent which is
specifically sensitive to a particular vapor or gas. The
reagents are contained on a fine grain absorbing media inside a
constant inner diameter, hermetically sealed glass tube.
The user snaps off the "break-away" pre-scored end of the
tube and inserts it in the tube holder. If present, the
particular gas or vapor to be measured immediately enters the
tube by the natural law of diffusion and reacts with the
absorbing media quantitatively to produce a length of stain
indication. At the end of the sampling period, the user notes
the parts per million (ppm) calibration mark on the tube at the
point where the color stain stops and simply divides this number
by the number of hours in the sampling period to obtain the time
weighted average concentration. Sampling periods can be as short
as 15 minutes or as long as 24 hours. Intermittent values can be
read during the measuring period.
ISSUE:
What is the proper classification of the gas detector tubes
and gas dosimeter tubes under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...according to the
following provisions..." The competing headings in this case are
headings 3822, 9027 and 9031, HTSUS.
Heading 3822, HTSUS, provides for "Composite diagnostic or
laboratory reagents, other than those of heading 3002 or 3006."
In Headquarters Ruling Letter (HRL) 089430 dated March 26, 1992,
Customs classified microcuvettes which were plastic cartridges
containing chemical reagents to test blood components under
subheading 3822.00.50, HTSUS. As the microcuvettes were composed
of plastic and the chemical reagent, they were classified
pursuant to GRI 3(b) with the essential character imparted by the
chemical reagent. The chemical reagent was the active principle
within the cartridge; the cartridge simply acted as a carrier for
the blood sample. See, HRL 088812 dated March 26, 1992, which
classified a blood diagnostic disposable cartridge composed of a
plastic cartridge containing a chemical reagent, pursuant to GRI
3(b) under subheading 3822.00.50, HTSUS. In both of these
rulings, a separate machine performed the analytical function
once the cartridge containing the blood sample and chemical
reagent was inserted therein.
The gas detector tubes and gas dosimeter tubes are
distinguishable from the cartridges in HRL's 088812 and 089430.
Like the above cartridges, the gas detector tubes and gas
dosimeter tubes contain chemical reagents which react when
exposed to a certain gas or vapor. However, in addition to the
reaction which occurs in the tubes, an analytical process is
performed. The analytical process is performed by finding the
end of the color-stain reaction and then reading the calibration
marks on the outside tube to determine the quantity of the
sampled gas or vapor in the air. In the case of the dosimeter
tubes, an additional step, a simple calculation, is performed to
determine the time weighted average of the sampled gas or vapor
present. The gas detector tubes and gas dosimeter tubes are not
solely a reagent which reacts with a gas or vapor, but are
designed to measure the quantity of gas or vapor in the air. The
gas detector tubes and gas dosimeter tubes do not satisfy the
terms of heading 3822, HTSUS. Accordingly, they are not properly
classifiable within this heading.
Heading 9027, HTSUS, provides for "...instruments and
apparatus for physical or chemical analysis (for example,
polarimeters, refractometers, spectrometers, gas or smoke
analysis apparatus)." The term physical and chemical analysis is
not defined within heading 9027, HTSUS. The examples cited of
apparatus for "physical and chemical analysis" include such
devices as gas or smoke analysis apparatus. Explanatory Note
(EN) 90.27 of the Harmonized Commodity and Description Coding
System (HCDCS) states that gas or smoke analysis apparatus are:
used to analyze combustible gases or combustion by-
products (burnt gases in coke ovens, gas producers,
blast furnaces, etc., in particular, for determining
their content of carbon dioxide, carbon monoxide,
oxygen, hydrogen, nitrogen or hydrocarbons.
HCDCS, p. 1514. The Explanatory Notes, although not dispositive,
are to be looked to for the proper interpretation of the HTSUS.
54 Fed. Reg. 35127, 35128 (August 23, 1989).
In Burrows Equip. Co. v. United States, 62 Cust. Ct. 681,
C.D. 3848, 300 F. Supp. 455 (1969), the U.S. Customs Court held
that an instrument for determining the germinating capacity of a
seed was properly classified as an instrument or apparatus for
chemical analysis. The instrument in Burrows involved a process
that relied upon a chemical reaction which caused those seeds
capable of germinating to be dyed red. In Burrows, the court
concluded that:
an instrument or apparatus is included within the
common meaning of the term 'chemical analysis' if it
determines one or more ingredients of a substance
either as to kind or amount; or if it performs a
detailed examination of a complex chemical substance
for the purpose of enabling one to understand its
nature or to determine an essential feature; or if it
determines what elements are present in a chemical
substance.
Id. at 458 (emphasis in original).
Congress has indicated that earlier tariff decisions must
not be disregarded in applying the HTSUS. The conference report
to the Omnibus Trade Bill of 1988, states that "on a case-by-
case basis prior decisions should be considered instructive in
interpreting the HTS[US], particularly where the nomenclature
previously interpreted in those decisions remain unchanged and no
dissimilar interpretation is required by the text of the
HTS[US]." H. Rep. No. 100-576, 100th Cong., 2d Sess. 548, 550
(1988). This situation exists in the present case. The
nomenclature involved in Burrows and in heading 9027, HTSUS, both
contain the phrase "instruments and apparatus for physical and
chemical analysis". Therefore, we find the description of the
phrase "physical and chemical analysis" rendered in Burrows
instructive in this instance.
Heading 9027, HTSUS, is a use provision. A tariff
classification controlled by use (other than actual use) is
governed by principal use. Additional U.S. Rule of
Interpretation 1(a), HTSUS. The principal use of the gas
detector tubes and gas dosimeter tubes is to determine the
concentration of the sampled gas or vapor in the air. This
determination is, first, based on the chemical reaction of the
reagent with the gas or vapor in the air. Once the reaction
takes place, the user is able to read the stain indicator by the
calibrations on the outside of the tube and, therefore, can
determine the concentration of gas or vapor in the air. This
case is similar to Burrows in which the instrument tested for a
germinating enzyme in a seed by exposing the seed to a chemical
and analyzing the ensuing reaction. The gas detector tubes and
gas dosimeter tubes react to a certain vapor or gas found in the
air. Therefore, the gas detector tubes and gas dosimeter tubes
fit the definition of an instrument or apparatus for chemical
analysis found in Burrows.
Moreover, your submitted information specifically lists
hydrogen, hydrocarbons, nitrogen and oxygen as gas and vapors
which the tubes are designed to detect. Pursuant to EN 90.27,
the gas detector tubes and gas dosimeter tubes are the class or
kind of articles covered under subheading 9027.10.60, HTSUS. See
also, Headquarters Ruling Letter (HRL) 084210 dated July 12,
1989, which held that an air sampler instrument used to test air
quality was classifiable under subheading 9027.10.60, HTSUS.
Subheading 9031.80.00, HTSUS, provides for measuring or
checking instruments, appliances and machines, not specified or
included elsewhere in this chapter. You argue that the gas
detector tubes and gas dosimeter tubes are classifiable as a
measuring or checking instruments within this tariff provision.
EN 90.31 states that this heading "does not include any
instruments, apparatus, etc., falling in headings 90.01 to 90.12
or 90.15 to 90.30...." HCDCS, p. 1529. As the gas detector
tubes and gas dosimeter tubes are provided for in heading 9027,
HTSUS, they cannot be classified under heading 9031, HTSUS.
HOLDING:
The gas detector tubes and gas dosimeter tubes are properly
classified under subheading 9027.10.60, HTSUS, as "Instruments
and apparatus for physical or chemical analysis...Gas or smoke
analysis apparatus...Other...Other," which is dutiable at the
rate of 6.2 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division