CLA-2 RR:CR:GC 959228 PH
Ms. Kathleen Crawford
Manager, Customs Affairs
BDP International Inc.
1017 4th Avenue
Lester, PA 19029-1813
RE: NY 818346 modified; artificial graphite lubricant; colloidal
or semi-colloidal graphite
Dear Ms. Crawford:
On March 1, 1996, New York Ruling Letter (NY) 818346 was
issued to you concerning "Product Type[s] A, B, [and] C
(Artificial Graphite Lubricants)" from Switzerland. You were
advised that each of the products was classifiable in subheading
3801.90.0000, Harmonized Tariff Schedule of the United States
(HTSUS), as other preparations based on graphite or other carbon.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act (Pub.L. 103-182, 107 Stat. 2057, 2186), notice
of the proposed modification of NY 818346 was published on June
17, 1998, in the CUSTOMS BULLETIN, Volume 32, Number 24. No
comments were received in response to this notice.
FACTS:
NY 818346 described product A as "a mixture of synthetic
graphite, starch, and polyvinylacetate"; product B as "a mixture
of synthetic graphite, polyvinylacetate"; and product C as "a
mixture of synthetic graphite, bentonite clay, and an ethylene
oxide or propylene oxide copolymer." In your letter of May 9,
1996, you describe the products as above, except that you state
that product A is "a dry powder mixture"; product B is an
"aqueous dispersion composed of synthetic graphite,
polyvinylacetate, and water"; and product C is "a dry powder
mixture composed of synthetic graphite, bentonite, and ethylene
oxide/propylene oxide copolymer." You state that the foreign
supplier advises that the additives to the synthetic graphite, in
all cases, are stabilizing agents only which maintain the
graphite particles in suspension and prevent sedimentation of the
particles or fermentation of the dispersion.
The subheadings under consideration are as follows:
3801.10.50: Artificial graphite; colloidal or semi-colloidal graphite; preparations based on
graphite or other carbon in the form of
pastes, blocks, plates or other
semimanufactures: Artificial graphite: ...
Other.
Goods classifiable under subheading 3801.10.50 receive duty-free
treatment.
3801.20.00: Artificial graphite; colloidal or semi-colloidal graphite; preparations based on
graphite or other carbon in the form of
pastes, blocks, plates or other
semimanufactures: ... Colloidal or semi-colloidal graphite.
Goods classifiable under subheading 3801.20.00 receive duty-free
treatment.
3801.90.00: Artificial graphite; colloidal or semi-colloidal graphite; preparations based on
graphite or other carbon in the form of
pastes, blocks, plates or other
semimanufactures: ... Other.
The 1998 general column one rate of duty for goods classifiable
under this provision is 4.9% ad valorem.
ISSUE:
Whether the merchandise is classifiable as other artificial
graphite in subheading 3801.10.50, HTSUS, colloidal or semi-colloidal graphite in subheading 3801.20.00, HTSUS, or other
preparations based on graphite or other carbon in subheading
3801.90.00, HTSUS.
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. GRI 2(b)
provides that any reference in a heading to a material or
substance shall be taken to include a reference to mixtures or
combinations of that material or substance with other materials
or substances, any reference to goods of a given material or
substance shall be taken to include a reference to goods
consisting wholly or partly of such material or substance, and
the classification of goods consisting of more than one material
or substance shall be according to the principles of GRI 3.
Under GRI 3(b), in pertinent part, when, by application of GRI
2(b) or for any other reason, goods are prima facie classifiable
under two or more headings and they cannot be classified by
reference to GRI 3(a) (by reference to the heading which provides
the most specific description), mixtures shall be classified as
if they consisted of the material which gives them their
essential character. GRI 6 provides that for legal purposes, the
classification of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any
related subheading notes and, by appropriate substitution of
terms, to GRIs 1 through 5, on the understanding that only
subheadings at the same level are comparable.
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. Customs believes the ENs should
always be consulted. See T.D. 89-80, published in the Federal
Register August 23, 1989 (54 FR 35127, 35128).
EN GRI Rule 2(b)(X) provides, in part, that:
... Mixtures being preparations described as such in a
Section or Chapter Note or in a heading text are to be
classified under the provisions of Rule 1.
EN 38.01 provides, in part, that:
(1) Artificial graphite (electro-graphite) is ... a product
... with an apparent specific gravity of about 1.5 to 1.6
and a homogeneous microcrystalline structure which X-ray
examination shows to be that of graphite. Chemical analysis
confirms that the substance is graphite (precipitation of
graphitic acid).
...
Artificial graphite of this heading is usually in the
form of powder, flakes, blocks, plates, bars, rods, etc.
The blocks and plates are used, after cutting and
high-finish machining (fine tolerances and appropriate
surface finish), to make the brushes or other electrical
carbon articles of heading 85.45 or parts of nuclear
reactors.
...
(2) Colloidal or semi-colloidal graphite.
(a) Colloidal graphite consists of finely divided
natural or artificial graphite in colloidal suspension in
water or in other media (e.g., alcohol, mineral oil), to
which may be added small quantities of other products such
as tannin or ammonia for the purpose of stabilising the
suspension. Colloidal graphite is usually semi-liquid, and
is mainly used for the manufacture of lubricating
preparations or for its high electrical conductivity.
(b) Semi-colloidal graphite (i.e., graphite in
semi-colloidal suspension in water or in other media).
Semi-colloidal graphite may be used for the preparation of
graphited oils or for forming graphited surfaces.
This category covers only graphite in colloidal or
semi-colloidal suspension in any media, the graphite being
the basic constituent.
Thus, to be classified as colloidal or semi-colloidal
graphite, the merchandise must consist of graphite in colloidal
suspension in water or in other media, and graphite must be the
basic constituent. "Colloid" is defined as "a homogeneous
mixture of substances, at least one of which is very finely
dispersed", The Encyclopedia Americana, International Ed. (1980),
vol. 7, 260, Colloid (see also, Hawley's Condensed Chemical
Dictionary, 12th Ed. (1993), colloid chemistry; McGraw-Hill
Encyclopedia of Science & Technology, 6th Ed. (1987), vol. 4,
Colloid; Kirk-Othmer Encyclopedia of Chemical Technology, 4th Ed.
(1993), vol. 6, Colloids). "Suspension" is defined as "a liquid
medium containing small solid particles that are at least 1
micron (0.00004 inch) in diameter and do not pass through filter
paper[;] ... [m]ixtures containing solid particles that are small
enough to pass through filter paper and that do not settle out on
standing are called colloidal suspensions or sols", The
Encyclopedia Americana, International Ed. (1980), vol. 26, 77,
Suspension (see also, Hawley's Condensed Chemical Dictionary,
12th Ed. (1993), suspension "[a] system in which very small
particles (solid, semi-solid, or liquid) are more or less
uniformly dispersed in a liquid or gaseous medium ...").
Thus, under the above definitions, for graphite to be in
colloidal or semi-colloidal suspension, the graphite, in very
small particles, must be dispersed in a liquid or gaseous medium.
This is consistent with the technical definition of colloidal and
semi-colloidal graphite found in the Kirk-Othmer Encyclopedia of
Chemical Technology (4th Ed. 1992). According to that text,
under the heading CARBON (NATURAL GRAPHITE), Colloidal Graphite
(vol. 4, at 1115):
Colloidal graphite refers to a permanent suspension of fine,
natural, or synthetic graphite in a liquid medium. The
average particle size is about 1 m and protective colloids
ensure permanency of the suspension. ... The name
semicolloidal is applied to less stable dispersions, ie
[sic], those that settle more readily because of large
particle size, less effective processing, or both.
According to all of the available information, including
review by the Customs Service's Office of Laboratories and
Scientific Services, product B, consisting of an aqueous
dispersion composed of synthetic graphite, polyvinylacetate, and
water, meets the above definitions. Product B is classifiable as
colloidal or semi-colloidal graphite in subheading 3801.20.00,
HTSUS.
Products A and C, dry mixtures of, respectively, synthetic
graphite, starch, and polyvinylacetate, and of synthetic
graphite, bentonite clay, and an ethylene oxide/propylene oxide
copolymer, do not meet the above definitions because the graphite
is not suspended in a liquid medium. They may not be classified
in subheading 3801.20.00, HTSUS.
Products A and C are each mixtures of artificial graphite
with other materials or substances. However, under EN GRI Rule
2(b)(X), the products may not be classified as artificial
graphite, in subheading 3801.10.50, HTSUS, by virtue of GRI 2(b)
or 3(b). That is, heading 3801 provides for "preparations based
on graphite or other carbon in the form of pastes, blocks, plates
or other semimanufactures" (emphasis added). EN GRI Rule 2(b)(X)
states that if a heading provides for a preparation, a mixture
which is such a preparation is classifiable according to the
terms of the heading (and any relevant section or chapter notes).
Products A and C are such preparations (i.e., they are
semimanufactures (components for the production of aqueous
graphite dispersions such as product B) based on graphite in the
form of mixtures). They are classifiable in subheading
3801.90.00, HTSUS, as other preparations based on graphite or
other carbon in the form of a semimanufacture. The
classification of products A and C in NY 818346 is unchanged.
HOLDING:
Product B, an aqueous dispersion composed of synthetic
graphite, polyvinylacetate, and water, is classifiable as
colloidal or semi-colloidal graphite in subheading 3801.20.00,
HTSUS; products A and C, dry mixtures of synthetic graphite and
other materials, are classifiable as other preparations based on
graphite or other carbon in subheading 3801.90.00, HTSUS.
EFFECT ON OTHER RULINGS:
NY 818346 dated March 1, 1996, is MODIFIED accordingly. In
accordance with 19 U.S.C. 625(c)(1), this ruling will become
effective 60 days after its publication in the CUSTOMS BULLETIN.
Publication of rulings or decisions pursuant to 19 U.S.C.
625(c)(1) does not constitute a change of practice or position in
accordance with section 177.10 (c)(1), Customs Regulations [19
CFR 177.10(c)(1)].
Sincerely,
John Durant, Director
Commercial Rulings Division