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.


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


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.


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.


John Durant, Director
Tariff Classification
Appeals Division