HQ 088351
MAR 26 1991
CLA-2:CO:R:C:M 088351 JAS
Kenneth G. Weigel
Baker & Hostetler
1050 Connecticut Ave., N.W.
Suite 1100
Washington, D.C. 20036
RE: Ion-Membrane Electrolyzer; Electrolytic Gas Generator;
Chlorine Gas Producing Apparatus
Dear Mr. Weigel:
In your letter dated November 7, 1990, on behalf of Mitsui &
Co. (U.S.A.), Inc., you inquire as to the tariff status of an
ion-membrane electrolyzer from Japan.
FACTS:
The electrolyzer in issue here is apparatus that operates
through the ion-membrane exchange process to produce chlorine
gas, hydrogen gas and a byproduct of caustic soda. The apparatus
is described as containing an anode cell and a cathode cell, both
connected to an electric power supply, and separated by an ion
exchange membrane. You state that an electrolyte solution of
sodium chloride brine is fed into the anode compartment. When
the current is activated sodium ions pass through the membrane
to the cathode where they are consumed. This is a process of
reduction that produces hydrogen gas and caustic soda. At the
same time, oxidation occurs at the anode to produce chlorine gas.
The provision for electrical machines and apparatus for
electrolysis, in subheading 8543.30.0000, HTSUSA, has been
suggested as appropriate in these circumstances. The rate of
duty is 3.9 percent ad valorem. You maintain that the principal
function of the apparatus is to produce gas and that heading 8405
encompasses self-contained apparatus and plant for generating any
kind of gas. You therefore conclude that the apparatus is
classifiable under the provision for producer gas or water gas
- 2 -
generators, in subheading 8405.10.0000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), dutiable at the
rate of 2.8 percent ad valorem.
ISSUE:
Whether the apparatus in issue is a producer gas generator
of heading 8405.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) in accordance
with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Explanatory Notes (ENs) constitute the Customs
Cooperation Council's official interpretation of the Harmonized
System. While not legally binding on the contracting parties,
and therefore not dispositive, the ENs provide a commentary on
the scope of each heading of the Harmonized System and are thus
useful in ascertaining the classification of merchandise under
the System. Customs believes the notes should always be
consulted. See T.D. 89-80.
The gas generators of heading 8405 are of the water type and
the producer type. Relevant ENs indicate that water gas
generators of heading 8405 serve primarily to produce a mixture
of hydrogen and carbon monoxide by forcing air and a spray of
water or steam over incandescent carbon, usually coke. Producer
gas generators, on the other hand, are apparatus for producing
combustible gases used for fuel, illumination, for driving
engines, etc. They usually consist of a closed cylinder,
generally fitted with an inert refractory lining to retain heat,
a grate on which a variety of solid fuels are burned, with
provision for passing a current of air or air and steam by
suction or blowing. The flow of air and steam is regulated so
that combustion is incomplete. A mixture of the gases liberated
by this process is drawn off at the top. The gases are later
separated.
The gas generators of heading 8405 appear limited to those
which produce gases by the burning of solid fuels. The apparatus
in issue, which produces gases by the electrolytic process, is
not encompassed by heading 8405.
- 3 -
HOLDING:
Under the authority of GRI 1, the ion-membrane electrolyzer
is provided for in heading 8543. Actual classification is in
subheading 8543.30.0000, HTSUSA, electrical machines and
appartaus for electrolysis. The rate of duty is 3.9 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division