OT:RR:CTF:EMAIN H341677 PF
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
breathalyzers must meet the exclusion’s descriptive text and be classified in the subheading
identified in the parenthetical. The breathalyzers must be portable, wireless enabled, and electrical
gas monitors and be classified in subheading 9027.10.20, HTSUS. There is no dispute that the
breathalyzers are classified in subheading 9027.10.20, HTSUS. In addition, there is no
disagreement that the breathalyzers are portable and are electrical gas monitors. The issue is
whether the breathalyzers are “wireless enabled.”
The term “wireless enabled” is not defined in the HTSUS or the ENs. As such, it must be construed
in accordance with its common meaning, which may be ascertained by reference to “dictionaries,
scientific authorities, other reliable information sources,” “lexicographic and other materials” and
to the pertinent ENs. C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271
(1982); Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989); GRK Can.,
Ltd. v. United States, 761 F.3d 1354, 1357 (Fed. Cir. 2014). The Cambridge Online Dictionary
defines “wireless” as “using a system of radio signals rather than wires to connect computers,
mobile phones, etc. to each other.”2 The Oxford English Dictionary defines “wireless” as “to send
a message by wireless.”3 The Britannica Online Dictionary defines “wireless” as “of or relating to
the user of radio waves to send and receive electronic signals.”4 In addition, the Cambridge Online
Dictionary defines “enabled” as “used to describe a piece of equipment that is able to use the
technology mentioned.” 5 The Britannica Online Dictionary defines “enabled” as “to cause (a
feature or capability of a computer) to be active or available for use.”6
Taking these definitions into account, we find that the common and commercial meaning of the
term “wireless enabled” is a device that can communicate using a wireless network such that it is
capable of transmitting and/or receiving wireless signals via a wireless network. Moreover, a
“wireless enabled” device must be able to relay information to another device via a wireless
communication system. In this case, the subject breathalyzers have their own screen that display
the BAC results to the user after blowing into the device for 5 seconds. The subject breathalyzers
do not transmit the BAC information to a smart phone, tablet or computer via Bluetooth or Wi-Fi.
As such, there is no data transmission occurring.
Protestant asserts that the breathalyzers are “wireless” because the breathalyzers do not use wires
to operate. For support, they cited to several rulings with merchandise described as “wireless,”
including New York Ruling Letter (NY) N298534 (Jul. 24, 2018) (power supply/charger that used
wireless inductive charging technology to supply power to the internal batteries of a cellular
telephone), NY N324932 (Apr. 13, 2022) (wireless home security system, including two-wire free
outdoor cameras that recorded videos and transmitted the videos back to a home base unit and a
user’s mobile phone for remote viewing/recording), Headquarters Ruling Letter (HQ) H013648
(Apr. 14, 2010) (handheld wireless microphone fitted to a receiver), and NY L85102 (Jun. 20,
2005) (“Wireless Air Stix,” described as a battery-operated light stick that played sounds when
swung through the air in a drumming motion).
2
Wireless | English meaning - Cambridge Dictionary (last visited Jan. 30, 2025).
3
Wireless - Quick search results | Oxford English Dictionary (oed.com) (last visited Jan. 30, 2025).
4
Wireless Definition & Meaning | Britannica Dictionary (last visited Jan. 30, 2025).
5
Enabled | English meaning - Cambridge Dictionary (last visited Jan. 30, 2025).
6
Enable Definition & Meaning | Britannica Dictionary (last visited Jan. 30, 2025).
4
There is no indication that the Wireless Air Stix in NY L85102 has wireless functionality and
therefore this case is not applicable. Regarding the other cases cited by the Protestant, these cases
highlight that the “wireless” devices work with another device to perform their function. For
example, the wireless charger in NY N298534 uses wireless technology to charge a cell phone.
The wireless security camera in NY N324932 is relaying images that it obtains to a device capable
of viewing the images without being tethered to the device with a wire. Moreover, the wireless
microphone (HQ) H013648 is relaying the sound to an amplifier or speaker to produce the sound.
None of these devices cited by Protestant have built-in methods of producing results without the
use of another device. The microphone is rendered useless if it does not have the ability to
distribute the sound. The camera is useless without the ability to relay the images. The charger
would not be able to perform any function on its own. As a result, cases cited by the Protestant are
not applicable.
It is true that the breathalyzers lack external wiring as they are battery-powered. However, the
word “wireless” modifies the word “enabled” in the exclusion text. As stated above, the term
“wireless enabled” means capable of transmitting and/or receiving wireless signals via a wireless
network. While the breathalyzers are battery operated and do not require a cord, they process all
the data themselves and do not communicate using a wireless network. Therefore, the
breathalyzers do not meet the term “wireless enabled.”
Protestant also relies on CBP rulings NY N247439 (Nov. 25, 2013) and NY N073639 (Sept.
18, 2009) in support of their contention. In NY N247439, the products at issue were breathalyzers
that sent results to a cell phone for display via a “wireless link” to “appropriate application
software.” In NY N073639, the breathalyzers had the ability to transmit results to a battery
powered printer (sold separately) by means of a wireless transmitter. In both NY N247439 and
NY N073639, the wireless aspect was transmitting a signal to another device. By contrast, the
subject breathalyzers do not transmit a signal to another device.
We therefore conclude that the subject breathalyzers do not meet the terms of the Section
301 exclusion provided for in U.S. Note 20(ttt)(ii)(34) to subchapter III of chapter 99, and
subheading 9903.88.67, HTSUS. Accordingly, the devices are subject to the additional Section
301 duties imposed by subheading 9903.88.02, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the breathalyzers are classified under heading 9027,
HTSUS, specifically 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
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
general, column one rate of duty is Free.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China
classified under subheading 9027.10.20, HTSUS, unless specifically excluded, are subject to an
5
additional 25 percent ad valorem rate of duty. At the time of importation, importers of goods of
China classified under subheading 9027.10.20, HTSUS, must also report the Chapter 99
subheading, i.e., 9903.88.02.
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 online at
https://hts.usitc.gov/.
Since the rate of duty under the classification indicated above is the same as the
liquidated rate, you are instructed to DENY the Protest in full.
You are instructed to notify the Protestant of this decision no later than 60 days from the
date of this decision. Any reliquidation of the entry or entries in accordance with the decision
must be accomplished prior to this notification. Sixty days from the date of the decision, the
Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and
the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or
other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
6