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HQ 088351

MAR 26 1991

CLA-2:CO:R:C:M 088351 JAS


TARIFF NO.: 8405.10.0000, 8543.30.0000

Kenneth G. Weigel
Baker & Hostetler
1050 Connecticut Ave., N.W.
Suite 1100
Washington, D.C. 20036

RE: Ion-Membrane Electrolyzer; Electrolytic Gas Generator; Chlorine Gas Producing Apparatus

Dear Mr. Weigel:

In your letter dated November 7, 1990, on behalf of Mitsui & Co. (U.S.A.), Inc., you inquire as to the tariff status of an ion-membrane electrolyzer from Japan.


The electrolyzer in issue here is apparatus that operates through the ion-membrane exchange process to produce chlorine gas, hydrogen gas and a byproduct of caustic soda. The apparatus is described as containing an anode cell and a cathode cell, both connected to an electric power supply, and separated by an ion exchange membrane. You state that an electrolyte solution of sodium chloride brine is fed into the anode compartment. When the current is activated sodium ions pass through the membrane to the cathode where they are consumed. This is a process of reduction that produces hydrogen gas and caustic soda. At the same time, oxidation occurs at the anode to produce chlorine gas.

The provision for electrical machines and apparatus for electrolysis, in subheading 8543.30.0000, HTSUSA, has been suggested as appropriate in these circumstances. The rate of duty is 3.9 percent ad valorem. You maintain that the principal function of the apparatus is to produce gas and that heading 8405 encompasses self-contained apparatus and plant for generating any kind of gas. You therefore conclude that the apparatus is classifiable under the provision for producer gas or water gas
generators, in subheading 8405.10.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), dutiable at the rate of 2.8 percent ad valorem.


Whether the apparatus in issue is a producer gas generator of heading 8405.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 Explanatory Notes (ENs) constitute the Customs Cooperation Council's 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 notes should always be consulted. See T.D. 89-80.

The gas generators of heading 8405 are of the water type and the producer type. Relevant ENs indicate that water gas generators of heading 8405 serve primarily to produce a mixture of hydrogen and carbon monoxide by forcing air and a spray of water or steam over incandescent carbon, usually coke. Producer gas generators, on the other hand, are apparatus for producing combustible gases used for fuel, illumination, for driving engines, etc. They usually consist of a closed cylinder, generally fitted with an inert refractory lining to retain heat, a grate on which a variety of solid fuels are burned, with provision for passing a current of air or air and steam by suction or blowing. The flow of air and steam is regulated so that combustion is incomplete. A mixture of the gases liberated by this process is drawn off at the top. The gases are later separated.

The gas generators of heading 8405 appear limited to those which produce gases by the burning of solid fuels. The apparatus in issue, which produces gases by the electrolytic process, is not encompassed by heading 8405.


Under the authority of GRI 1, the ion-membrane electrolyzer is provided for in heading 8543. Actual classification is in subheading 8543.30.0000, HTSUSA, electrical machines and appartaus for electrolysis. The rate of duty is 3.9 percent ad valorem.


John Durant, Director
Commercial Rulings Division

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