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HQ 950405


August 20, 1992

CLA-2 CO:R:C:M 950405 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.10.60

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

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