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HQ 967079




July 1, 2004

CLA-2 RR:CR:GC 967079 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.10.2000; 8414.80.9000

Norma J. Hudon
KPMG LLP
Commerce Place
10125 – 102 Street
Edmonton, Alberta, Canada
T5J 3V8

RE: Gas Detectors; Air Pump

Dear Ms. Hudon:

On June 4, 2004, Customs and Border Protection issued to you Headquarters Ruling Letter (HQ) 967082, which classified, among other imports, the I.S. Plant Rat gas detector under subheading 9027.10.20, Harmonized Tariff Schedule of the United States (HTSUS), as a gas analysis instrument.

You have also requested, on behalf of your client, BW Technologies Ltd., classification of four additional products of gas detection merchandise.

FACTS:

The merchandise at issue is the Confined Space Kit, GasAlert CO Response Kit, the SamplerPak and the Value-added SamplerPak.

The Confined Space Kit contains several components, including a 10 foot sampling hose, 4-port charger kit with rechargeable batteries, quad calibration gas and regulator, calibration hose, a support CD-ROM, the Sampler motorized sampling pump or manual aspiration pump, either the Gas Alert Micro or Gas Alert Max gas detector, and a hard-sided carrying case. Both the Gas Alert Micro and Gas Alert Max gas detectors were classified in HQ 967080, dated June 4, 2004 under subheading 9027.10.20, HTSUS, as gas analysis instruments. The Confined Space Kit constitutes a GRI 3(b) set wherein the Gas Alert Micro or Gas Alert Max comprise the essential character of the merchandise.

The GasAlert CO Response Kit is designed for detecting carbon monoxide leaks in the home and contains several components, including the GasAlert CO detector GA-M, a CO Bump Test Gas with balloon adaptor, instructional manuals and video, and a hard-sided carrying case. The GasAlert CO Response Kit constitutes a GRI 3(b) set wherein the GasAlert CO Detector GA-M comprises the essential character of the merchandise.

The SamplerPak includes a motorized sampling pump, two rigid sample tubes with barbed fitting, a flexible sampling hose with airstone/particulate filter, a connector hose, two AA batteries, two additional filters, instructions and a hard-sided foam-lined carrying case. Once activated, it provides a continuous flow of an air/gas sample; it does not capture an isolated sample for later analysis. Rather, it is used to withdraw a sample from up to 50 feet away that is immediately tested by a gas detection device such as the GasAlert Micro, Gas Alert, or the GasAlert LEL, all three of which were previously classified in HQ 967080, dated June 4, 2004 and HQ 967081, dated June 4, 2004, under subheading 9027.10.20, HTSUS, as gas analysis instruments. The SamplerPak additionally incorporates an audible/visual alarm device that informs the user as to whether there is low airflow or blockage in a tube.

The Value-added SamplerPak is identical to the SamplerPak, with the exception that it includes a gas detection device. The three models which may be included are the Gas Alert Micro, Gas Alert, or Gas Alert LEL. It constitutes a GRI 3(b) set wherein the included gas detector comprises the essential character of the merchandise.

The gas detection devices contained in the Confined Space Kit, GasAlert CO Response Kit, and the Value-added SamplerPak contain a sensor that is designed to measure the parts per million of a gas in a general area, and electronics that determine when that gas level goes beyond a designated range. They are fitted with alarm devices, but have the additional ability to display, via digital readout, accurately measured gas levels.

HQ 967082 determined, in part, that the I.S. Plant Rat, because of its ability to monitor gas levels in addition to its alarm capabilities, was an analytical device of heading 9027, HTSUS. The I.S. Plant Rat was also determined to be an “electrical” instrument. The LAW AND ANALYSIS section of HQ 967082 sets forth Customs position regarding the I.S. Plant Rat and the distinguishing factors which prescribed classification under heading 9027, HTSUS.

The analysis applied in HQ 967082 regarding the I.S. Plant Rat also applies herein with respect to the classification of the Confined Space Kits, Gas Alert Co Response Kit, and the Value-added SamplerPak. The LAW AND ANALYSIS section of HQ 967082 is hereby incorporated by reference. However, because the SamplerPak does not contain a gas detector, the analysis applied in HQ 067082 does not apply and as a result it is separately classified herein.

ISSUE:

Whether the SamplerPak is a pump of heading 8414, 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. 89-90.

Heading 8414, HTSUS, applies to air or vacuum pumps. EN 84.14 provides, in pertinent part:

This heading covers machines and appliances, hand-operated or power driven, for the compression of air or other gases, or for creating a vacuum, and also machines for circulating air or other gases.

Compressors are widely used: for compressing gases into gas cylinders; in chemical processes; for refrigerators, etc. and for compressing air or other gases in reservoirs to be used to force feed machines or apparatus such as compressed air engines, pneumatic picks, winches, brakes, pneumatic conveyor tubes, submarine ballast tanks, etc.

The term “pump” is defined in Miriam Webster’s Collegiate Dictionary (10th Ed., 2002), in pertinent part, as “[a] device that raises, transfers, or compresses fluids or that attenuates gases especially by suction or pressure or both.” Similarly, The Concise Columbia Electronic Encyclopedia (3rd Ed., 1994), defines “pump,” in pertinent part, as “[a] device to lift, transfer, or increase the pressure of a fluid (liquid or gas) or to create a [vacuum].

An examination of the information provided on the SamplerPak indicates that it is an air pump of heading 8414, HTSUS. The SamplerPak is described as having a “motorized sampling pump” used to withdraw a continuous air/gas sample for immediate analysis by a gas detection device such as the Gas Alarm, Gas Alert Micro or Gas Alert LEL (not included in the SamplerPak). In practice, it appears to move the air/gas from the inlet to the outlet port and the attached hoses and tubes allow for the device and its user to be located at a distance of up to 50 feet from the area intended to be sampled.

In HQ 962057, dated April 20, 1999, CBP held that articles covered by subheading 8414.80, HTSUS, are air pumps other than hand or foot operated, and compressors other than those used in refrigerating equipment or air compressors mounted on a wheeled chassis. It is apparent that the SamplerPak is not hand or foot operated, nor is it capable of compressing an air/gas sample. Therefore, it is not an air compressor, but rather a battery operated air pump and as such is classified under residual subheading 8414.80.90, HTSUS.

HOLDING:

The Confined Space Kit, GasAlert CO Response Kit, and the Value-added SamplerPak are GRI 3(b) sets and classified under subheading 9027.10.2000, Harmonized Tariff Schedule of the United States Annotated (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.

The SamplerPak is classified under subheading 8414.80.9000, HTSUSA, as “Air or vacuum pumps, air or other gas compressors and; fans ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; parts thereof: Other, except parts: Other.” The 2004 column one general rate of duty is 3.7 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

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