CLA-2 CO:R:C:F 951851 EAB
M. Kawatsuji, Chemicals Manager
Nichimen America Inc.
1185 Avenue of the Americas
New York, New York 10036
Re: Artificial graphite; electrical brushes; HQ 088850; AUSRI
1(b); NYRL 866470 modified
Dear Mr. Kawatsuji:
This is in reply to your letter (MK2250) dated August 12,
1991, in which you request a binding ruling on the classification
of certain artificial graphite products.
This is also a decision on a reconsideration of NYRL 866470
(September 20, 1991), which classified certain identical
merchandise under subheading 3801.10.10, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) and held that
merchandise so classified would be entered free of duty.
FACTS:
The goods are semimanufactured artificial graphite articles
ultimately intended to be used in crucibles and heaters for
crystal growing furnaces for semiconductors, jigs for glass-to-
metal sealing, electrodes for electrical discharge machining and
bearings and seals for machines.
NYRL 866470, supra, classified identical merchandise under
subheading 3801.10.10, HTSUSA, a provision for artificial
graphite; plates, rods and other forms wholly or partly
manufactured, for manufacturing into brushes for electric motors
or other machines and held that merchandise so classified would
be entered free of duty.
ISSUE:
What is the proper classification under the HTSUSA of
artificial graphite semimanufactures?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. The tariff classification of merchandise under the
HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA and are to be
considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRI's taken in order.
Explanatory Notes to the Harmonized Commodity Description
and Coding System represent the official interpretation of the
Customs Cooperation Council on the scope of each heading, and,
although neither binding upon the contracting parties to the
Harmonized System Convention nor considered to be dispositive
interpretations, they should be consulted on the proper scope of
the System.
Subheading 3801.10.10, HTSUSA, provides for artificial
graphite plates, wholly or partly manufactured for manufacturing
into brushes for electric generators, motors or other machines or
appliances, dutiable at the column 1 general rate of duty of 3.7%
ad valorem. Subheading 3801.10.50, provides for artificial
graphite plates wholly or partly manufactured other than for
manufacturing into brushes for electrical generators, motors or
other machines or appliances, to be entered free of duty.
Subheading 8545.20.00, provides for carbon brushes and other
articles of graphite of a kind used for electrical purposes,
dutiable at 3.7% ad valorem.
Explanatory Note 38.01(1) instructs that artificial graphite
of heading 3801, HTSUSA, usually in the form of blocks, plates,
etc., is used in the manufacturing of brushes (heading 3801) or
other electrical carbon articles of heading 8545. Explanatory
Note 85.45(D) advises that carbon brushes are used as sliding
contacts for generators, motors, etc., as current-collectors for
electric locomotives, etc., made very accurately to size and
carefully machined to precise tolerances.
Clearly, as imported, the subject articles are not brushes
as described in heading 8545, but articles of artificial graphite
to be used in further manufacturing as described in heading 3801.
accord, HQ 088850 (August 26, 1991).
We are of the opinion that the subject articles are properly
classifiable under either of subheadings 3801.10.10 or
3801.10.50, HTSUSA, depending upon the subsequent uses for which
a particular article will be further manufactured.
HOLDING:
Artificial graphite semimanufactures are properly classified
under subheading 3801.10.10, HTSUSA, which provides for
artificial graphite; plates, rods and other forms wholly or
partly manufactured, for manufacturing into brushes for electric
motors or other machines, when such use is intended. Merchandise
classified under this subheading is subject to the column 1
general rate of duty of 3.7% ad valorem.
As subheading 3801.10.10 is an actual use provision governed
by Additional U.S. Rule of Interpretation 1(b), HTSUSA, proof of
actual use may be required in accordance with Customs
Regulations.
Artificial graphite semimanufactures are properly classified
under subheading 3801.10.50, HTSUSA, which provides for
artificial graphite; plates, rods and other forms wholly or
partly manufactured, other than for manufacturing into brushes
for electric motors or other machines. Merchandise classified
under this subheading may be entered free of duty.
This decision should be considered a modification of NYRL
866470 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 866470 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling. For purposes of future
transactions in merchandise of this type, NYRL 866470 will not be
valid precedent. We recognize that pending transactions may be
adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it. If such a situation
arises, you may notify this office and apply for relief from the
binding effects of this decision as may be warranted by the
circumstances.
Sincerely,
John Durant, Director