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HQ 963870




July 14, 2000

CLA-2 RR:CR:GC 963870 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 8507.90.40

Mr. Jeffrey S. Levin
Harris, Ellsworth & Levin
2600 Virginia Avenue, N.W.
Suite 1113
Washington, D.C. 20037-1905

RE: Cells for lead-acid batteries.

Dear Mr. Levin:

This is in reference to your letter of February 17, 2000, to the Customs National Commodity Specialists Division in New York, requesting, on behalf of Hawker Powersource, Inc., the classification of certain cells used to construct “wet” and “dry” lead-acid storage batteries under the Harmonized Tariff Schedule of the United States (HTSUS). As you are aware, the request was forwarded to this office for reply. Schematic drawings were provided for our examination.

FACTS:

The articles at issue are cells used to construct lead-acid storage batteries. The battery that is constructed from a number of cells is a device used to generate and store electricity by means of a chemical reaction. Two types of cells are presented for consideration: a “wet” cell which already contains electrolyte (sulfuric acid) and a “dry” cell to which electrolyte must be added after importation to the United States. Each cell contains a number of components. The principal components are the plates and separators. Positively and negatively charged plates are made from an active material and a lead alloy in the form of a grid. The active material is a composite of dry oxide, water and diluted acid. The grids are manufactured from a combination of lead and antimony. The separators prevent metallic conduction between the alternating positive and negative plates. Separate bars connect all of the positive plates and all of the negative plates. Lead alloy posts facilitate the attachment and connection of the cells. The components are housed in a casing composed of polyvinyl chloride (PVC). The
chemical reaction of the electrolyte with the positively and negatively charged plates chemically reacts to produce electricity. By design, the cells are rechargeable.

One cell alone cannot produce an electrical charge of consequence. The separate cells must be arranged and interconnected to produce useful electrical energy. The batteries in question will be used to power forklifts.

ISSUE:

Whether the cells at issue are classifiable as batteries or as parts of batteries under heading 8506 or 8507, HTSUS?

LAW and ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

The HTSUS headings and subheadings under consideration are as follows:

8506 Primary cells and primary batteries; parts thereof:
8506.80.00 Other:
8506.90.00 Parts.

8507 Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof:
8507.20 Other lead-acid storage batteries: 8507.20.40 Of a kind used as the primary source of electrical power for electrically powered vehicles of subheading 8703.90.
8507.20.80 Other:
8507.80 Other storage batteries:
8507.80.40 Of a kind used as the primary source of electrical power for electrically powered vehicles of subheading 8703.90.
8507.90 Parts:
8507.90.40 Of lead-acid storage batteries.

The ENs to heading 8506, HTSUS, provide, in pertinent part, as follows:

These generate electrical energy by means of chemical reactions.

A primary cell consists basically of a container holding an alkaline or a non-alkaline electrolyte (e.g., potassium or sodium hydroxide, ammonium chloride or a mixture of lithium chloride, ammonium chloride, zinc chloride and water) in which two electrodes are immersed. * * * Each electrode is provided with a terminal or other arrangement for connection to an external circuit. The principal characteristic of a primary cell is that it is not readily or efficiently recharged.

Primary cells are used for supplying current for a number of purposes (for bells, telephones, hearing aids, wireless sets, pocket lamps, electric prods for cattle, etc.). Cells may be grouped together in batteries, either in series or in parallel or a combination of both [emphasis added]. Cells and batteries remain classified here irrespective of the use for which they are intended (e.g., standard cells for laboratory work producing a constant known voltage fall in the heading).

The various types of cells include:

(1) Wet cells, in which the electrolyte is a liquid.

(2) Dry cells, in which the electrolyte is mixed with a thickener such as agar-agar or flour to form a paste; used mainly for portable devices.

Certain cells (e.g., wet cells) are usually presented without their electrolyte, but remain classified here.

This heading does not cover rechargeable cells and batteries, whose upper terminal is usually a perforated brass cap; these are classified in heading 85.07 as electric accumulators [emphasis added].

The articles at issue are designed and intended to be rechargeable. As indicated by the EN to heading 8506, the articles, by definition, cannot be classified in that heading.

The ENs to heading 8507, HTSUS, provide, in pertinent part, as follows:

Electric accumulators (storage batteries) are used to store electricity and supply it when required. A direct current is passed through the accumulator producing certain chemical changes (charging); when the terminals of the accumulator are subsequently connected to an external circuit these chemical changes reverse and produce a direct current in the external circuit (discharging). This cycle of operations, charging and discharging, can be repeated for the life of the accumulator.

Accumulators consist essentially of a container holding the electrolyte in which are immersed two electrodes fitted with terminals for connection to an external circuit. In many cases the container may be subdivided, each subdivision (cell) being an accumulator in itself; these cells are usually connected together in series to produce a higher voltage. A number of cells so connected is called a battery [emphasis added]. A number of accumulators may also be assembled in a larger container.

The main types of accumulators are:

(1) Lead-acid accumulators, in which the electrolyte is sulfuric acid and the electrodes lead plates or lead grids supporting active material. The electrodes may consist of simple plates, grids, rods, etc., or of grids or tubes covered or filled with a special paste of the active material. The containers for lead-acid accumulators are usually made of glass or, in the case of car batteries, are moulded from plastic, hard rubber or composition material. In big stationary accumulators, glass or lead lined, plastic or wood boxes are used, while containers for alkaline accumulators are usually of steel or plastics. Certain nickel-cadmium accumulators are contained in small waterproof containers and have the external appearance of dry batteries of heading 85.06. Electric accumulators remain classified here even if presented without their electrolyte.

PARTS

Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading also covers parts of accumulators, e.g., containers and covers; lead plates and grids, whether or not coated with paste; separators of any material (except of unhardened vulcanised rubber or of textile material), including those in the form of flat plates merely cut into rectangles (including squares), meeting very precise technical specifications (porosity, dimensions, etc.) and hence ready for use.

Subject to certain exceptions not relevant here, goods that are identifiable 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 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).

While the importer states that the instant merchandise will be used to power forklifts, we do not find that the articles are “solely or principally” intended for such use. Further, both heading 8506 and heading 8507, HTSUS, contain provisions for parts of the articles respectively classifiable thereunder. Accordingly, the articles will be so classified.

There appears to be some ambiguity in the use of the terms “cells” and “batteries,” both in the tariff headings themselves, and to a lesser extent, in the ENs. Neither term is defined in either the tariff or the ENs. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

Webster’s II New Riverside University Dictionary, (Houghton Mifflin Company, 1988), defines the term “battery” as “3. An array or grouping of like things to be used together."

Van Nostrand’s Scientific Encyclopedia (D. Van Nostrand Company, Inc., 1968) describes a “battery” as follows:

The most common usage of the word is in reference to a collection of chemical cells, normally connected in a series, for the production or storage of electrical energy.

McGraw-Hill Multimedia Encyclopedia of Science and Technology, (McGraw Hill, Inc. 1994), under the heading “battery” provides the following:

Voltaic cells are used for the intermittent production of small amounts of electricity. When the chemicals involved are exhausted and must be replaced, the unit is called a primary cell. A special case of the primary cell is the fuel cell in which the fuel and an oxidizer are fed continuously to the cell, converted to electricity, and the products removed. If exhausted components can be revived by passing electricity backward through the unit, it is called a secondary cell, storage battery, or accumulator. Cells may be connected in parallel or in series to form a battery.

The McGraw-Hill Multimedia Encyclopedia of Science and Technology, (McGraw Hill, Inc. 1994), describes the term “storage battery” as follows:

An assembly of identical voltaic cells in which the electrochemical action is reversible so that the battery may be recharged by passing a current through the cells in the opposite direction to that of the discharge. While many nonstorage batteries have a reversible process, only those that are economically rechargeable are classified as storage batteries.

Under the heading “battery,” McGraw-Hill provides:

A device which transforms chemical energy into electric energy. The term is usually applied to a group of two or more electric cells connected together electrically. In common usage, the term battery is also applied to a single cell, such as a flashlight battery.

The heading “battery” contains a subheading captioned “types” which provides:

There are in general two types of batteries, primary batteries and secondary storage or accumulator batteries. * * * Secondary batteries are constructed so that they may be recharged, following a partial or complete discharge, by the flow of direct current through them in a direction opposite to the current flow or discharge.

The New Encyclopedia Britannica, (Fifteenth Edition, 1993), Macropaedia, defines “batteries” under the subheading “general characteristics” as follows:

A battery is a simple device that converts chemical energy directly to electrical energy. It consists of two or more galvanic, or electrochemical, cells that produce direct-current electricity.

Under the subheading “storage batteries,” the Britannica Micropaedia provides:

Battery, in electricity and electrochemistry, any of a class of devices that convert chemical energy into electrical energy. Although the term battery, in strict usage, designates an assembly of two or more voltaic cells capable of such energy conversion, it is commonly applied to a single cell of this kind.

We find that the distinction between “batteries” and “cells” contained in the EN to heading 8506 is intended to exclude from heading 8506 those articles that are rechargeable. Non-rechargeable batteries – primary cells – are classifiable under heading 8506, HTSUS. Storage or secondary cells that are rechargeable are classifiable under heading 8507, HTSUS. Further, the EN to heading 8506 states that “cells may be grouped together in batteries, either in series or in parallel or a combination of both.” The EN to heading 8507 states that “a number of cells so connected (in a series to produce a higher voltage) is called a battery.” We find that, because of this distinction, headings 8506 and 8507 must be read in pari materia (i.e., must be construed together) and that the HTSUS and EN evince an intent to consider “cells” to be parts of batteries. This conclusion comports with all of the above-cited authorities, and is apparent by careful reading of the HTSUS and pertinent ENs. Because the articles at issue are intended to be rechargeable, they are excluded from classification in heading 8506, HTSUS.

The articles at issue are cells that must be arranged in a group to provide their intended function. In the case of the “dry” cells, those articles must be further worked following importation in order to function at all. In the case of the “wet” cells, those articles must be arranged and connected in order to have any meaningful function. Once finished and arranged into a battery of cells (see the Webster’s definition, supra), the articles will be usable. We find the articles, “wet” and “dry” cells designed and intended to be used in rechargeable secondary or storage batteries, to be parts of accumulators classifiable under heading 8507, HTSUS.

This conclusion comports with Headquarters Ruling Letter (HQ) 555877, dated March 25, 1991, in which Customs recognized that a cell is a primary component of a battery.

HOLDING:

The “wet” and “dry” lead-acid cells designed and intended to be used in rechargeable secondary or storage batteries are classifiable under subheading 8507.90.40, HTSUS, as parts of lead-acid storage batteries.

Sincerely,

John Durant, Director

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