CLA-2 RR:TC:MM 958688 RFA
Port Director of Customs
200 St. Paul Place
Baltimore, MD 21202
RE: Protest 1303-95-100424; Stainless and Dielectric (Glass)
Tubes for Ozone Generating Systems; Parts; Electrical
Machines and Apparatus, Not Specified Elsewhere; Headings
8405 and 8543; EN 84.05; HQs 957651 and 951195
Dear Port Director:
The following is our decision regarding Protest 1303-95-100424, which concerns the classification of stainless and
dielectric tubes for ozone generating systems under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise is stainless steel and dielectric
(glass) tubes along with control brushes, extension rods, spaces,
and screws (hereinafter referred to as "tubing parts"), for use
in an ozone generating system. After importation, the steel
tubes are welded to steel sheets to form a tube bundle, and the
bundle is inserted into a shell in the generator system. The
dielectric tubes are inserted into the steel tubes, and electric
current is passed from the steel tubes through the glass tubes at
a high voltage, creating a corona discharge. Air or oxygen is
passed through the electrical discharge, thereby producing ozone
from the oxygen.
The ozone is a strong oxidizing agent used in the
purification of potable or waste water and is also used in other
industrial oxidation applications. The dielectric accessories
are utilized to facilitate the efficient flow of electric current
and gas.
The merchandise was entered under subheading 8405.90.00,
HTSUS, as parts of producer gas generators. The entry was
liquidated on June 16, 1995, under subheading 8543.90.75, HTSUS,
as parts of electrical machines and apparatus not specified
elsewhere. The protest was timely filed on September 11, 1995.
The subheadings under consideration are as follows:
8405.90.00: Producer gas or water gas generators, with or
without their purifiers; acetylene gas
generators and similar water process gas
generators, with or without their purifiers;
parts thereof: [p]arts. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 2.2 percent ad valorem.
8543.90.75 Electrical machines and apparatus, having
individual functions, not specified or
included elsewhere in this chapter; parts
thereof: [p]arts: [o]ther: [o]ther. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 3.6 percent ad valorem.
ISSUE:
Whether the subject merchandise, which is a part of an ozone
generating system, is classifiable as part of producer gas or
water gas generators under heading 8405, HTSUS, or under heading
8543, HTSUS, as part of electrical machines not specified or
included elsewhere?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.
The protestant claims that the tubing parts are properly
classified under heading 8405, HTSUS, as gas generator parts.
Customs has previously determined that heading 8405, HTSUS, is a
very specific provision in providing by name only for producer
gas generators, water gas generators, acetylene gas generators,
and similar water process gas generators. See HQ 957651 (dated
March 20, 1995); HQ 951195 (dated June 15, 1992).
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the official interpretation of
the HTSUS. While not legally binding, the ENs provide 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. 89-80, 54 FR 35127, 35128 (August 23, 1989).
EN 84.05, page 1148, states, in pertinent part, that: "[t]he
heading also excludes: . . . (b) [o]zone generating and
diffusing apparatus, electric, designed for non-therapeutic
purposes (e.g., for industrial uses, for the ozonization of
premises)(heading 85.43) and ozonotherapy apparatus (heading
90.19). Based upon the above rulings and the exclusionary note
in EN 84.05, we find that the tubing parts for the ozone
generators cannot be classified under subheading 8504.90.00,
HTSUS.
As previously noted, heading 8543, HTSUS, covers electrical
machines and apparatus not specified elsewhere. We further find
that the ozone generators which produce ozone gas through the use
of electrical discharge and air or oxygen, are not classifiable
more specifically elsewhere under the HTSUS. EN 85.43(12), page
1403, states that ozone generating and diffusing apparatus are
included by the terms of heading 8543, HTSUS. Following the
guidance in the ENs, we find that the tubing parts for the ozone
generators are classifiable under subheading 8543.90.75, HTSUS,
as parts of electrical machines and apparatus, not specified
elsewhere.
HOLDING:
For the foregoing reasons, the tubing parts for the ozone
generator systems are classifiable under subheading 8543.90.75,
HTSUS, as "[e]lectrical machines and apparatus, having individual
functions, not specified or included elsewhere in this chapter;
parts thereof: [p]arts: [o]ther: [o]ther. . . . "
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together
with the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division