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HQ 957651



March 20, 1995

CLA-2 CO:R:C:M 957651 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8421.39.80; 8543.30.00

Mr. Jeff Hesseltine
A.I. Scientific Co., Inc.
424 Second Street, Suite D
Davis, CA 95616

RE: Hydrogen, Nitrogen, Pure Air, and Multiple Gas Generators; "McGraw-Hill Dictionary of Scientific and Technical Terms"; Water Gas; Producer Gas; Explanatory Notes 84.05, 84.21(II), and General Note (VI) to section XVI; HQ 951195; Section XVI, Note 3; GRI 3(c); 8405.10.00

Dear Mr. Hesseltine:

This is in response to your letter of December 20, 1994, to the Area Director of Customs, New York Seaport, concerning the classification of hydrogen, nitrogen, pure air, and multiple gas generators under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response.

FACTS:

The merchandise consists of hydrogen, nitrogen, pure air, and multiple gas generators, for use in laboratories for chemical analysis and, in particular, gas chromatography. With regard to the hydrogen generator, hydrogen is obtained by electrolysis of demineralized water through a cell with patented multilayer electrodes. Waste oxygen is dissipated into the atmosphere, and the hydrogen, after having been dehumidified, is conveyed to its specific application. With regard to the nitrogen generator and the pure air generator, nitrogen and pure air are obtained by their separation from the ambient air through the use of molecular sieve filters. The filters, similar to chromatographic columns, absorb useless gases allowing a storage of pure gas in a small reservoir. In the nitrogen generator, nitrogen is produced by filtering the air through carbon molecular sieves and trapping all that is not nitrogen. In the pure air generator, compressed air is passed through an alumina bed so that humidity and all impurities are removed. The multiple gas generator is a modular unit which combines standard hydrogen, nitrogen, and pure generator units in single housing. It is our understanding that the multiple gas generator may be imported in the following combinations: pure air and nitrogen generators; hydrogen and pure air generators; hydrogen and nitrogen generators; and hydrogen, nitrogen, and pure air generators.

The subheadings under consideration are as follows:

8405.10.00: [p]roducer gas or water gas generators, with or without their purifiers; acetylene gas generators and similar water process gas generators, with or without their purifiers.

The general column one rate of duty for goods classifiable under this provision is 2.2 percent ad valorem.

8421.39.80: [f]iltering or purifying machinery and apparatus for gases: [o]ther: [o]ther.

The general column one rate of duty for goods classifiable under this provision is 3.1 percent ad valorem.

8543.30.00: [e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: [m]achines and apparatus for electroplating, electrolysis or electrophoresis.

The general column one rate of duty for goods classifiable under this provision is 3.6 percent ad valorem.

ISSUE:

Whether the hydrogen gas generator is classifiable under subheading 8405.10.00, HTSUS, as a producer gas or water gas generator, or under subheading 8543.30.00, HTSUS, as an electrical machine for electrolysis.

Whether the nitrogen and pure air gas generators are classifiable under subheading 8405.10.00, HTSUS, as producer gas or water gas generators, or under subheading 8421.39.80, HTSUS, as filtering or purifying machinery for gases.

Whether the various combinations of multiple gas generators are classifiable under subheading 8405.10.00, HTSUS, as producer gas or water gas generators, under subheading 8421.39.80, HTSUS, as filtering or purifying machinery for gases, or under subheading 8543.30.00, HTSUS, as electrical machines for electrolysis.

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 is determined according to the terms of the headings and any relative section or chapter notes.

HYDROGEN GAS GENERATORS

In the "McGraw-Hill Dictionary of Scientific and Technical Terms" (5th Ed.), water gas and producer gas are defined as follows:
water gas A mixture of carbon monoxide and methane produced by passing steam through deep beds of incandescent coal; used for industrial heating and as a gas engine fuel.
producer gas Fuel gas high in carbon monoxide and hydrogen, produced by burning a solid fuel with a deficiency of air or by passing a mixture of air and steam through a bed of incandescent fuel; used as a cheap, low-Btu industrial fuel.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, 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 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 84.05 (pp. 1146 - 1147), HTSUS, states that:

[t]his heading covers self-contained apparatus and plant for generating any kind of gas (e.g., producer gas, water gas and mixtures thereof, or acetylene) whatever the intended use of the gas produced . . . .

(A) PRODUCER GAS GENERATORS

These usually consist of a closed cylinder, generally fitted with a refractory lining or a water-cooled double wall enclosing a grate (either of fixed, shaking or revolving type), with provision for passing a current of air (or of air and steam) by suction or blowing. A thick bed of fuel is burned on the grate and the flow of air and steam is regulated so that combustion is incomplete, the resultant mixture of carbon monoxide, hydrogen and nitrogen (producer gas) being drawn off at the top of the apparatus. . .

(B) WATER GAS GENERATORS

These are of similar construction, but are arranged so that air and a spray of water or steam are blown in alternate phases into the apparatus. The gas resulting from the water phase is a mixture of hydrogen and carbon monoxide (water gas) having a higher heating power than producer gas. It may be collected separately from the producer gas obtained during the air phase or the two gases may be mixed.

It is our position that the hydrogen generator, which creates hydrogen through water electrolysis and is neither water gas nor producer gas as defined above, is not described under subheading 8405.10.00, HTSUS. We note that Explanatory Note 84.05 provides that heading 8405, HTSUS, covers apparatus for generating any kind of gas. However, in HQ 951195, dated June 15, 1992, in which we dealt with the classification of a gas generator for an automobile air bag restraint system under the HTSUS, we stated that:

[i]t is our position that the subject gas generator is not classifiable under subheading 8405.10.00, HTSUS. Although the note states that heading 8405, HTSUS, covers apparatus generating "any kind of gas", heading 8405, HTSUS, is very specific in only providing for producer gas generators, water gas generators, acetylene gas generators, and similar water process gas generators. The subject gas generator, which produces gases from the combustion of chemical pellets, is not provided for under heading 8405, HTSUS. The language of Explanatory Note 84.05, HTSUS, should not be interpreted to expand the language of heading 8405, HTSUS.

Therefore, we find that the hydrogen generator is precluded from classification under subheading 8405.10.00, HTSUS.

As previously noted, subheading 8543.30.00, HTSUS, provides for electrical machines for electrolysis. Because the hydrogen generator produces hydrogen through the use of water electrolysis and the hydrogen generator is not classifiable more specifically elsewhere under the HTSUS, the hydrogen generator is classifiable under subheading 8543.30.00, HTSUS.

NITROGEN AND PURE AIR GENERATORS

As with the hydrogen generator, because the nitrogen and pure air generators neither operate similar to water gas or producer gas generators nor produce water gas or producer gas, they are precluded from classification under subheading 8405.10.00, HTSUS.

In part, Explanatory Note 84.21(II) (pp. 1181 -1182) states:

(II) FILTERING OR PURIFYING MACHINERY AND APPARATUS, FOR LIQUIDS OR GASES

Much of the filtration or purification plant of this heading is purely static equipment with no moving parts. The heading covers filters and purifiers of all types (physical or mechanical, chemical, magnetic, electro-magnetic, electro-static, etc.). The heading covers not only large industrial plant, but also filters for internal combustion engines and small domestic appliances. The heading does not, however, include filter funnels, milk strainers, vessels, tanks, etc., simply equipped with metallic gauze or other straining material, nor general purpose vessels, tanks, etc., even if intended for use as filters after insertion of a layer of gravel, sand, charcoal, etc. . .

(B) Filtering or purifying machinery, etc., for gases.

These gas filters and purifiers are used to separate solid or liquid particles from gases, either to recover products of value (e.g., coal dust, metallic particles, etc., recovered from furnace flue gases), or to eliminate harmful materials (e.g., dust extraction, removal of tar, etc., from gases or smoke fumes, removal of oil from steam engine vapours). . .

The nitrogen and pure air generators use filtering systems to produce the nitrogen and pure air, respectively. With regard to the nitrogen generator, nitrogen is produced by filtering the air via carbon molecular sieves and trapping all that is not nitrogen, such as humidity and hydrocarbons (liquid particles), oxygen, carbon monoxide, and carbon dioxide. With regard to the pure air generator, compressed air is filtered through an alumina bed so that impurities such as humidity and hydrocarbons (liquid particles), etc., are removed. The removal of these impurities through the filtering process ensures that the gases will be proper for their respective applications.

Therefore, because heading 8421, HTSUS, covers filtering apparatus of all kinds, static or not, it is our position that the nitrogen and pure air generators are classifiable under subheading 8421.39.80, HTSUS.

MULTIPLE GAS GENERATORS

Section XVI, note 3, HTSUS, states that:

[u]nless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

Because the various combinations of multiple gas generators consist of two or more machines adapted for the purpose of performing two or more functions in a single housing, we must determine the principal function of each combination generator. However, because all of the combinations contain generators which play a primary role in the operation of each multiple gas generator, we find that no component imparts the principal function of a multiple gas generator.

In part, General Explanatory Note (VI) to section XVI (p. 1133) states that:

[w]here it is not possible to determine the principal function, and where, as provided in Note 3 to the Section, the context does not otherwise require, it is necessary to apply General Interpretative Rule 3(c); . . .

GRI 3(c) states that:

[w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

With regard to the pure air and nitrogen generator combinations, because both articles are classifiable under subheading 8421.39.80, HTSUS, that combination multiple gas generator is so classifiable. With regard to the last three combinations of multiple gas generators, because the provision to occur last in numerical order is subheading 8543.30.00, HTSUS, those combination multiple gas generators are so classifiable.

HOLDING:

The hydrogen generator is classifiable under subheading 8543.30.00, HTSUS, as an electrical machine for electrolysis.

The nitrogen and pure air generators are classifiable under subheading 8421.39.80, HTSUS, as filtering or purifying machinery for gases.

The pure air and nitrogen combination multiple gas generator is classifiable under subheading 8421.39.80, HTSUS, as filtering or purifying machinery for gases.

The following three combinations of multiple gas generators are classifiable under subheading 8543.30.00, HTSUS, as electrical machines for electrolysis: the hydrogen and pure air generators; hydrogen and nitrogen generators; and hydrogen, nitrogen, and pure air generators.

Sincerely,

John Durant, Director
Commercial Rulings Division

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