CLA-2 RR:CR:GC 967082 NSH
Norma J. Hudon
KPMG LLP
Commerce Place
10125 – 102 Street
Edmonton, Alberta, Canada
T5J 3V8
RE: Gas Detectors
Dear Ms. Hudon:
This is in response to your request dated March 8, 2004, on behalf of your client, BW Technologies Ltd., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of various gas detectors.
FACTS:
The merchandise at issue are four models of gas detectors: the Toxyclip for O2, Toxyclip 2, Alarm Rat and I.S. Plant Rat. The Toxyclip for O2 and the Toxyclip 2 provide audible and visual warnings of unsafe gas levels, but neither model provides actual gas measurements that are displayed. The Toxyclip for O2 appears to be an updated model of the Oxclip and the Toxyclip 2 appears to be an updated model of the Toxyclip, both of which were previously classified in NY 887089, dated June 15, 1993. In that ruling, Customs classified both the Oxyclip and Toxyclip under subheading 8531.10.00, HTSUS.
The Alarm Rat and I.S. Plant Rat, are also fitted with alarm devices, but have the additional ability to display, via digital readout, accurately measured gas levels. The Alarm Rat is the same model that was already classified in NY 887089 and the I.S. Plant Rat is an updated model of the Plant Rat that also was classified in NY 887089. In that ruling, Customs classified both the Alarm Rat and Plant Rat under subheading 9027.10.20, HTSUS.
All four models contain a sensor that is designed to measure the parts per million (ppm) of a gas in a general area, and electronics that determine when that gas level goes beyond a designated range.
ISSUE:
Whether the subject gas detection merchandise are alarms of heading 8531, HTSUS, or gas analysis instruments of heading 9027, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing 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.
The HTSUS provisions under consideration are as follows:
Electrical sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 8512 or 8530; parts thereof:
Burglar or fire alarms and similar apparatus
* * * * * *
8531.80 Other apparatus
* * * * * *
Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof:
Gas or smoke analysis apparatus:
Electrical
You have requested a binding ruling on four models of gas detectors, urging that classification should be under subheading 8531.80.00, HTSUS. The four models at issue are the Toxyclip for O2, Toxyclip 2, Alarm Rat and I.S. Plant Rat. Although all four models are capable of measuring the ppm of a gas in a general area, and contain electronics that determine when that gas level goes beyond a designated range, there is a difference in capabilities between these models; the Toxyclip for O2 and Toxyclip 2 are only equipped with audio and visual alarm devices, whereas the Alarm Rat and I.S. Plant Rat are equipped with graduated indicators, i.e., digitally accurate read-outs of the current gas level measurements, in addition to their audio and visual alarm capabilities.
Section XVI, Note 1(m), which includes chapter 85, states:
1. This section does not cover:
…
(m) Articles of Chapter 90;
Because of the exemption for articles of chapter 90, it is first necessary to determine whether the gas detectors at issue can be classified under heading 9027, HTSUS. If they can be classified under heading 9027, HTSUS, then classification under heading 8531, HTSUS, is precluded.
EN 90.27 details various types of gas detecting apparatus and provides, in pertinent part:
This heading includes:
…
Gas or smoke analysis apparatus. These 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. Electrical gas or smoke analysis apparatus are mainly for determining and measuring the content of the following gases: carbon dioxide, carbon monoxide and hydrogen, oxygen, sulfur dioxide, ammonia.
…
Electronic smoke detectors, used in furnaces, ovens, etc., for example, in which a beam of light (or infra-red) rays is directed on to a photoelectric cell. According to the density of the smoke, the passage of this beam through the smoke causes variations in the current in the photoelectric cell circuit, thus operating a graduated indicator or a recording system and, in certain cases, a regulating valve. These apparatus may be fitted with an alarm device.
Electronic smoke detectors equipped solely with an alarm fall in heading 85.31.
Heading 9027, HTSUS, as stated both in the heading text and EN 90.27 (8), covers gas analysis apparatus. Although EN 90.27 (9) directly references smoke detectors, Customs believes that the exclusion of apparatus equipped only with alarm functions applies, mutatis mutandis, to the gas detectors at issue. As such, although devices equipped with gas analysis electronics and alarm functions, or else only gas analysis electronics, would be classified under heading 9027, HTSUS, devices containing only alarm functions would be classified under heading 8531, HTSUS. This reasoning is applicable even though both types are capable of measuring the ppm of a gas in a general area and contain similar electronics, because the particular specifications of a device are what determines classification. The fact that these devices have certain similarities is not controlling.
Customs has previously classified gas detectors substantially similar to the models at issue. In NY 887089, Customs classified five models of what were described as “gas monitoring units.” In that ruling, the Oxyclip and Toxyclip, the predecessor models to the Toxyclip for O2 and Toxyclip 2, respectively, were classified under subheading 8531.10.00, HTSUS. Customs described those older models as being comprised of a sensor enabling them to measure the ppm of a gas and the electronics to determine when the gas level rose beyond a designated range. It is apparent that their function was to serve as an alarm for when gas levels became hazardous. In contrast, the NY ruling classified three other units, the Pack Rat, Alarm Rat and Plant Rat, under subheading 9027.10.20, HTSUS. In differentiating between the two classifications, Customs noted that the units classified under heading 9027, HTSUS, had the ability to display visual readouts of the gas level measurements, in addition to their alarm capabilities. It is apparent that this additional measurement ability was distinguished by Customs as determinative for purposes of classification.
Customs has repeatedly adhered to the standard as set forth in NY 887089 for determining whether a device capable of detecting hazardous gas levels will be classified under either heading 8531, HTSUS, or heading 9027, HTSUS. See NY B81281, dated February 7, 1997 (carbon monoxide detector that sounded an audible alarm while providing a visual warning via an LED was classified under heading 8531, HTSUS), NY 887780, dated July 21, 1993 (gas monitoring units with both audio and visual alarm functions as well as the ability to display the gas ppm level were classified under heading 9027, HTSUS), HQ 950407, dated November 15, 1991 (electrical system designed to sense smoke, water or gas leakage or intrusion and activate both an audio and visual alarm was classified under heading 8531, HTSUS) and NY 851139, dated April 24, 1990 (gas monitors with both audio and visual alarm functions as well as a direct digital readout of gas concentration was classified under heading 9027, HTSUS). In all of the above rulings, it is the ability to continuously monitor gas levels that differentiated the products from alarms of heading 8531, HTSUS. With regard to the cited rulings, Customs believes that the same analysis should be applied to the current merchandise.
In considering the gas detector models at issue, Customs believes that, based upon the above analysis, the Toxyclip for O2 and Toxyclip 2 are classified under heading 8531, HTSUS, because they possess only alarm functions; the I.S. Plant Rat is classified under heading 9027, HTSUS, because it incorporates the ability to accurately monitor gas level measurements in addition to its alarm functions. In this case, the incorporation of graduated indicators on the I.S. Plant Rat allows for an analysis function that cannot be undertaken with devices capable only of sounding an alarm, such as the Toxyclip for O2 and Toxyclip 2. It should be noted that because the Alarm Rat was previously classified in NY 887089, and in making our determination on the I.S. Plant Rat we find the analysis set forth in NY 887089 to be valid, this ruling does not address the Alarm Rat.
Recognizing that the gas detectors capable of displaying digitally accurate read-outs of current gas level measurements will also be put to use for their alarm function, we note that the additional ability to monitor gas level measurements necessitates classification as an analytical device of heading 9027, HTSUS, as opposed to a simple alarm of heading 8531, HTSUS. Although the Toxyclip for O2 and Toxyclip 2 are capable of some sort of analysis ability in order to determine when their alarms are triggered, as are most alarm systems of heading 8531, HTSUS, we note that the inability of the devices to express accurate measurements of gas levels exempts them from classification as an analytical device of heading 9027, HTSUS. Additionally, because the I.S. Plant Rat is provided for under heading 9027, HTSUS, pursuant to section XVI, note 1(m), it is exempt from classification under heading 8531, HTSUS.
We note that you have provided information stating the Canada Border Services Agency (CBSA) has indicated that classification of all the merchandise at issue should be under heading 8531, HTSUS. However, we note that while foreign rulings or statements on classification opinions may be instructive, Customs is not bound to abide by another country’s rulings. See T.D. 89-80.
Within heading 9027, HTSUS, the I.S. Plant Rat is considered an electrical instrument. Additional U.S. Note 2 to chapter 90 addresses the term “electrical” and states as follows:
For the purposes of this chapter, the term “electrical” when used in reference to instruments, appliances, apparatus and machines, refers to those articles the operation of which depends on an electrical phenomenon which varies according to the factor to be ascertained.
The I.S. Plant Rat is considered an electrical instrument because it contains electrochemical cells that react with gases of differing chemical properties in order to provide an accurate measurement of gas levels. As such, it relies in part on electricity in order to obtain a reading because the proportional variation of voltage resulting from the different chemical makeup of distinctive gases will yield different results.
HOLDING:
The Toxyclip for O2 and the Toxclip 2 are classified under subheading 8531.10.0045, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as “Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 8512 or 8530; parts thereof: Burglar or fire alarms and similar apparatus: Other: Other.” The 2004 column one general rate of duty is 1.3 percent ad valorem.
The I.S. Plant Rat is classified under subheading 9027.10.2000, HTSUSA, as “Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof: Gas or smoke analysis apparatus: Electrical.” The 2004 column one general rate of duty is 1.7 percent ad valorem.
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 the World Wide Web at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division