CLA-2 CO:R:C:F 953502 EAB
District Director
U.S. Customs Service
Second and Chestnut Streets
Philadelphia, Pennsylvania 19106
Re: Application for Further Review of Protest No. 1101-93-100055,
dated February 26, 1993, concerning scrap articles of carbon;
baked carbon not artificial graphite; non-ceramic refractory
goods; parts
Dear Sir:
This is a decision on a protest filed February 26, 1993
against your decision in the classification of merchandise
liquidated on January 29, 1993 and entered on August 18, 1992 and
September 18, 1992.
FACTS:
The protestant entered goods under heading 2803, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), a
provision for other forms of carbon not elsewhere specified or
included, to be entered free of duty.
Customs reclassified the goods under heading 6815, a provision
for articles of stone or of other mineral substances, not elsewhere
specified or included, and assessed duty at the column one general
rate of 4.9 percent ad valorem.
Documents submitted with the protest have been supplemented
by telephone conversations from the protestant to this office and
a meeting with counsel for the protestant.
Anthracite coal is mixed with coal tar pitch and then baked
to 1200 degrees centigrade to form calcined amorphous carbon
industrial electric furnace liners, electrodes and cathodes. These
are not articles of so-called "artificial", or electro- or
synthetic graphite, since the crystalline structure of artificial
graphite is not present. Following baking and prior to final
manufacturing, the articles are tested against electrical and heat
standards. Those semi-manufactures that fail to meet the
intermediate standards are scrapped. The remaining semi-
manufactures are then fully manufactured for use as electric
furnace electrodes and liners in the steel metallurgy industry
until, under normal wear and tear, they also are scrapped.
Semi-manufactures that are unfit for further manufacture into
finished goods for the electric furnace steel metallurgy industry
and the spent electric furnace steel electrodes and liners, are
purchased, imported and manufactured into industrial furnace liners
for the aluminum metallurgy industry by the protestant.
ISSUE:
Whether originally defective or previously used industrial
electric furnace electrodes, cathodes and liners made of calcined
amorphous carbon and coal tar pitch are classified under heading
2803 as other forms of carbon not elsewhere specified or included,
under heading 3801 as a preparation based on carbon in the form of
blocks or other semimanufactures, under heading 6815 as articles
of mineral substances other than stone not elsewhere specified or
included, under heading 6902 as refractory blocks other than those
of siliceous fossil meals or similar siliceous earths, under
heading 8514 as parts of industrial electric furnaces, or under
heading 8545 as carbon electrodes.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. Tariff classification 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 GRIs taken in order.
The Explanatory Notes (Ens) to the Harmonized Commodity
Description and Coding System represent the official interpretation
of the Customs Cooperation Council on the scope of each heading;
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.
Except where the context otherwise requires, the headings of
chapter 28 apply only to separate chemical elements and separate
chemically defined compounds. See Legal Note 1(a), Chapter 28,
HTSUSA. We find that the subject goods are neither a separate
chemical element nor a separate chemically defined compound; we
are, therefore, of the opinion that the goods are not classifiable
under heading 2803.
Heading 3801 applies in part to artificial graphite, colloidal
or semi-colloidal graphite and preparations based on graphite or
other carbon in the form of pastes, blocks, plates or other
semimanufactures. The Explanatory Note to the heading makes it
clear that the phrase "preparations based on graphite or other
carbon" is meant to include:
"Carbons" obtained by the firing, at a
temperature (1000 to 1200 oC) insufficient to
produce true "graphitisation", of mixtures of
finely ground coke or lamp black and powdered
natural or artificial graphite with
carbonaceous binders such as pitches or tars.
EN 38.01(3)(a)(i). We note that this Explanatory Note allows that
the "heading also includes scrap, waste and worn-out articles,
suitable only for the recovery of artificial graphite," EN
38.01(1). While the note is silent on such articles of other forms
of graphite, we are mindful of the general principle of
classification, that an eo nomine provision is deemed to include
all forms of an article or good within its terms. Thus, a
provision for certain goods would include those goods fit for use
as manufactured as well as those goods unfit for use as such,
regardless of whether the sub-standard condition was due to
ordinary wear and tear, a manufacturing defect, or otherwise. This
principle recognizes that, while the rate of duty would be the same
under any circumstance, the amount of duty paid must be expected
to be appreciably less in the case of scrapped goods, since it must
be expected that the price paid or payable for the goods would be
appreciably less as a matter of sound business practice.
Based upon the foregoing, we find that semi-manufactures that
are unfit for further manufacture into finished goods for the
electric furnace steel metallurgy industry are classifiable under
subheading 3801.90, HTSUSA.
Heading 6815 describes in part articles of mineral substances
other than stone, not elsewhere specified or included. There is
no provision for waste or scrap of such articles; therefore, waste
or scrap consisting of "articles of mineral substances other than
stone, not elsewhere specified or included" would be classified
under heading 6815.
Heading 6902 describes in part refractory bricks and similar
refractory ceramic constructional goods. It is understood that the
phrase "refractory bricks" is limited to "ceramic refractory
bricks," since Legal Note 1 to Chapter 69 provides that the chapter
"applies only to ceramic products . . . ." Additional U.S. Note
1 to the chapter defines "ceramic article" to exhibit, inter alia,
a crystalline or substantially crystalline structure. We find that
the subject goods are not substantially crystalline; we are of the
opinion, therefore, that they are not classified under heading
6902.
Heading 8514 describes the following goods: "Industrial . .
. electric . . . furnaces and ovens; . . . parts thereof." The
heading makes no distinction between functional and non-functional
parts. We find that the terms of heading describe the damaged and
used, which is to say "scrapped," industrial electric furnace
liners.
Heading 8545 describes, in part, "carbon electrodes." Again,
the heading makes no distinction between functional and non-
functional goods. We find that the terms of the heading describe
the damaged and used, which is to say "scrapped," industrial
electric furnace electrodes and cathodes.
Legal Note 2, Section XVI, states as follows: "[P]arts of
machines are to be classified according to the following rules: (a)
Parts which are goods included in any of the headings of chapters
84 and 85 (other than headings 8485 and 8548) are in all cases to
be classified in their respective headings." [emphasis added.]
We are of the opinion that the terms of headings 8514 and
8545, together with Legal Note 2, Section XVI, require that the
spent electric furnace steel electrodes and liners, purchased,
imported and manufactured into industrial furnace liners for the
aluminum metallurgy industry by the protestant, be classified under
these headings, as the case may be.
HOLDING:
Semi-manufactured articles of calcined amorphous carbon and
coal tar pitch are classifiable under subheading 3801.90.0000,
HTSUSA, a provision for "[a]rtificial graphite; colloidal or semi-
colloidal graphite; preparations based on graphite or other carbon
in the form of pastes, blocks, plates or other semimanufactures:
Other."
Merchandise entered under subheading 3801.90.0000 during the
calendar year 1993 was entitled to be entered at the column one
general rate of duty of 4.9 percent ad valorem.
Previously used industrial electric furnace liners made of
calcined amorphous carbon and coal tar pitch are classifiable under
subheading 8514.90.00, HTSUSA, a provision for "[i]ndustrial or
laboratory electric (including induction or dielectric) furnaces
and ovens; other industrial or laboratory induction or dielectric
heating equipment; parts thereof: Parts."
Merchandise entered under subheading 8514.90.0000 during the
calendar year 1993 was entitled to be entered at the column one
general rate of duty of 2.5 percent ad valorem.
Previously used industrial electric furnace electrodes and
cathodes made of calcined amorphous carbon and coal tar pitch are
classifiable under subheading 8545.11.0000, HTSUSA, a provision for
"[c]arbon electrodes, carbon brushes, lamp carbons, battery carbons
and other articles of graphite or other carbon, with or without
metal, of a kind used for electrical purposes: Electrodes: Of a
kind used for furnaces."
Merchandise entered under subheading 8545.11.0000 during the
calendar year 1993 was entitled to be entered at the column one
general rate of duty of 2.4 percent ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance.
A copy of this decision should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1992, Subject: Revised Protest Directive,
this decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any reliquidation
of the entry in accordance with the decision must be accomplished
prior to mailing of 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
Ruling Module in ACS and the public via the Diskette Subscription
Service, Lexis, Freedom of Information and other public access
channels.
Sincerely,
John Durant, Director