# 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,]{.underline}
(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]{.underline} (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]{.underline}, (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]{.underline}, (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]{.underline} 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,]{.underline} (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]{.underline}
*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]{.underline} 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

Commercial Rulings Division