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HQ 958688




March 15, 1996

CLA-2 RR:TC:MM 958688 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.90.75

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

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