CLA-2 RR:TC:MM 960142 JAS
Port Director of Customs
300 Second Avenue South
Great Falls, Montana 59403
RE: PRD 3304-96-100068; Adsorber Vessel, Pressure Swing Adsorption System, Hydrogen Gas Separation Equipment; Filtering or Purifying Machinery and Apparatus, Heading 8421; Container for Compressed and Liquified Gas, Heading 7311; Nidec Corporation v. U.S.,Section XVI, Note 2
Dear Port Director:
This is our decision on Protest 3304-96-100068, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS), of an adsorber vessel, a product of
Canada. The entry under protest was liquidated on September 13,
1996, and this protest timely filed on December 12, 1996.
FACTS:
The merchandise in issue is the PSA adsorber vessel. It is
described as an integral part or component of apparatus known as
a POLYBED Pressure Swing Adsorption (PSA) System. The adsorber
vessel is a pressurized steel container incorporating a series of
plates, baffles, filters and flow distributors to produce high
purity hydrogen. In a supplemental submission, dated February 3,
1997, counsel for the protestant confirmed that these design
features are permanently installed in the vessel prior to
importation, and that they are precision fitted so that no
further adjustment is necessary after importation. The adsorber
vessel operates in two stages: first, incoming hydrogen gas is
directed at relatively high pressure through a bed of adsorbent
material, typically activated charcoal, in the vessel. Hydrogen
molecules pass through while impurities cling to the adsorbent
material in a process called preferential adsorption; second, as
pressure in the adsorber vessel is lowered, the adsorbed or - 2 -
assimilated impurities are released from the adsorbent material
and pass through screens in the bed of the adsorber vessel for
collection downstream in a surge tank.
The adsorber vessel was entered under a provision in HTS
heading 8421, for other parts of filtering and purifying
machinery and apparatus. The entry was liquidated under a
provision of heading 7311, as containers for compressed or
liquified gas, of iron or steel. Counsel for the protestant
maintains that subheading 8421.99.00, HTSUS, parts of filtering
and purifying machinery and apparatus, represents the correct
classification because the adsorber vessel is an integral
component of the POLYBED PSA System.
The provisions under consideration are as follows:
7311.00.00 Containers for compressed or liquified gas, of iron or steel
* * * *
8421 [f]iltering and purifying machinery and apparatus, for liquids or gases; parts thereof:
Filtering and purifying machinery for gases
8421.39 Other:
8421.39.80 Other
8421.91 Parts:
8421.99.00 Other
ISSUE:
Whether the PSA adsorber vessel is filtering or purifying
machinery and apparatus; whether it is part of such machinery and
apparatus.
- 3 -
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) 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 Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the 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 ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
Counsel supports the subheading 8421.39.80 classification by
citing certain ENs to heading 84.21 for the proposition that the
adsorber vessel is integral to the process of obtaining purified
hydrogen. He also cites various court cases on the so-called
Rule of Essentiality, a nd concludes that the adsorber vessel
qualifies as a "part" for tariff purposes.
The ENs at p. 1281, describe filtering or purifying
machinery for gases of heading 84.21. Gas filters and purifiers
of this heading are used to separate solid or liquid particles
from gases, either to recover products of value or to eliminate
harmful materials. Included in this group are filters and
purifiers acting solely by mechanical or physical means. In the
first type, the separating element consists of a porous surface
or mass (felt, cloth, metallic sponge, glass wool, etc.). In the
second type, separation is achieved by suddenly reducing the
speed of the particles drawn along with the gas, so that they can
be collected by gravity, trapped on an oiled surface, etc. It is
our opinion that, by function and design, the adsorber vessel
under protest performs a filtering and purifying operation for
tariff purposes.
Subject to certain exceptions that are not relevant here,
goods that are identifiable as parts of machines or apparatus of
Chapter 84 or Chapter 85 are classifiable in accordance with
Section XVI, Note 2, HTSUS. Nidec Corporation v. United States,
861 F. Supp. 136, aff'd. 68 F. 3d 1333 (1995). Parts which are - 4 -
goods included in any of the headings of Chapters 84 and 85 are
in all cases to be classified in their respective headings. See
Note 2(a). Other parts, if suitable for use solely or
principally with a particular machine, or with a number of
machines of the same heading, are to be classified with the
machines of that kind. See Note 2(b). In this case, the
adsorber vessel is stated to be a part or component of the
POLYBED PSA System. However, in accordance with Note 2(a), it is
described in heading 8421 as filtering or purifying machinery or
apparatus for gases.
HOLDING:
Under the authority of GRI 1, the PSA adsorber vessel is
provided for in heading 8421. It is classifiable in subheading
8421.39.80, HTSUS.
Since reclassification of the merchandise as indicated will
result in the same rate of duty as claimed, the protest should be
ALLOWED. In accordance with Section 3A(11)(b) of Customs
Directive 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, you should mail this decision, together with
the Customs Form 19, to the protestant no later than 60 days from
the date of this letter. Any reliquidation of the entry or
entries in accordance with the decision must be accomplished
prior to mailing 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 to the public via the Diskette
Subscription Service, the Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division