H341677

H341677 February 14, 2025 OT:RR:CTF:EMAIN H341677 PF CATEGORY: Classification TARIFF NO(s).: 9027.10.2000, 9903.88.02 Center Director Center of Excellence and Expertise, Machinery U.S. Customs and Border Protection 9901 Pacific Highway Blaine, WA 98230 Attn: Michelle Petrie, Supervisory Import Specialist RE: Application for Further Review of Protest No: 280924111068; Applicability of Section 301 trade remedies of breathalyzers from China Dear Center Director: This is our decision regarding an Application for Further Review (AFR) of Protest No. 2809241110681 filed by counsel on behalf of KHN Solutions LLC (dba BACtrack) (Protestant). The Protest and AFR pertain to CBP’s determination on the applicability of the exclusion annotated under Chapter 99 U.S. Note 20(ttt)(ii)(34) under the Harmonized Tariff Schedule of the United States (HTSUS) to breathalyzers. Our decision is set forth below. No sample was provided. Within its AFR, the Protestant requested confidential treatment of entry and internal accounting information. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The specified items will not be released to the public and will be withheld from the published version of this decision. The subject merchandise was entered between January 22, 2023 and February 5, 2024 and was liquidated under subheading 9027.10.20, HTSUS, which provides for “Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or 1 Protestant also filed Protest and AFR No. 280125102045 on January 29, 2025, which is pending CBP’s decision on Protest/AFR No. 280924111068. 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.” As a product of China, the subject merchandise was also subject to additional ad valorem duties pursuant to U.S. Note 20 to Subchapter III, Chapter 99, subheading 9903.88.02, HTSUS. Protestant does not dispute CBP’s classification of the breathalyzers under subheading 9027.10.20, HTSUS. Instead, Protestant dispute’s CBP’s liquidation of the entries under subheading 9903.88.02, HTSUS, and the 25 percent duty assessment under the Section 301 Trade Remedy. Protestant claims that the subject breathalyzers should be liquidated under subheading 9903.88.67, HTSUS, citing the exclusion annotated under Chapter 99 U.S. Note 20(ttt)(ii)(34) for “Portable, wireless enabled, electrical gas monitors (described in statistical reporting number 9027.10.2000).” FACTS: The subject merchandise consists of five breathalyzer models: BACtrack Keychain, BACtrack Go, BACtrack Nano, BACtrack S35 and the BACtrack T60 (breathalyzers). The BACtrack Keychain is a small breathalyzer created with a lightweight and slim design to hang on a keychain. The BACtrack Go is nearly identical to the BACtrack Keychain, except that its display can also show the device’s battery life and direct the user to “wait” or “blow,” in addition to the BAC test result. The BACtrack Nano is BACtrack’s smallest breathalyzer and is designed to be placed in the user’s pocket, purse, or hung from a keychain for easy access. The BACtrack S35 functionally is nearly identical to the BACtrack Keychain but has a larger detection range of 0.00-0.40%. Finally, the BACtrack T60 is nearly identical in functionality as the BACtrack Keychain, except that it has a slimmer design meant to be placed in a pocket or purse, rather than hung on a keychain. Each of the devices operate very similarly and utilize either the BluFire Fuel Cell Sensor technology or MicroCheck Sensor Technology. The BluFire Fuel Cell Sensor technology relies on an electrochemical process that oxidizes the alcohol. The oxidization process then produces an electrical current that the device uses to measure the user’s blood alcohol content (BAC) and communicates via the display. The MicroCheck Sensor technology relies on semiconductor oxide sensors using a tin-oxide substance. When the user breathes into the device, a mesh film heated by the sensor changes its resistance. The change in sensor resistance is directly correlated with alcohol concentration, and that change is communicated to the user via the display. The design of all five models ensures that only the gases from the user’s breath are measured. After analyzing the sample, the devices deliver the user’s BAC results to the built-in display screen. The breathalyzers are never plugged into an outlet or other device via a cord or wire. The subject devices transmit the user’s results to its built-in screen without the support of any external wiring and are powered by batteries. ISSUE: 2 Whether the breathalyzers satisfy an exclusion provision pertaining to products described by statistical reporting number 9027.10.2000, HTSUSA and are eligible to claim the secondary tariff number of subheading 9903.88.67, HTSUS. LAW AND ANALYSIS: We first note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii)– (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review of the protest is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the question as to whether the subject breathalyzers are considered to be “portable, wireless enabled, electrical gas monitors (described in statistical reporting number 9027.10.2000)” as provided in U.S. Note 20(ttt)(ii)(34) to Chapter 99, HTSUS, has not been ruled upon by the Commissioner of CBP or his designee, or by the Customs courts. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions at issue are as follows: 9027 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: 9027.10 Gas or smoke analysis apparatus: 9027.10.20 Electrical. U.S. Note 20(ttt)(ii)(34) to Chapter 99, HTSUS, provides as follows, in pertinent part: The U.S. Trade Representative determined to establish a process by which particular products classified in heading 9903.88.02 and provided for in U.S. notes 20(c) and 20(d) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.02. See 83 Fed. Reg. 40823 (August 16, 2018) and 83 Fed. Reg. 47326 (September 18, 2018). Pursuant to the product exclusion process, the U.S. Trade Representative has determined that, as provided in heading 9903.88.67, the additional duties provided for in heading 9903.88.02 shall not apply to the following particular products, which are provided for in the enumerated statistical reporting numbers: [. . .] (34) Portable, wireless enabled, electrical gas monitors (described in statistical reporting number 9027.10.2000)[.]” 3 By the plain language of the 301 exclusion under Chapter 99 U.S. Note 20(ttt)(ii)(34), the subject breath

We first note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii)– (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review of the protest is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the question as to whether the subject breathalyzers are considered to be “portable, wireless enabled, electrical gas monitors (described in statistical reporting number 9027.10.2000)” as provided in U.S. Note 20(ttt)(ii)(34) to Chapter 99, HTSUS, has not been ruled upon by the Commissioner of CBP or his designee, or by the Customs courts. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions at issue are as follows: 9027 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: 9027.10 Gas or smoke analysis apparatus: 9027.10.20 Electrical. U.S. Note 20(ttt)(ii)(34) to Chapter 99, HTSUS, provides as follows, in pertinent part: The U.S. Trade Representative determined to establish a process by which particular products