CLA-2 RR:CR:GC 960476 RC
Port Director of Customs
610 S. Canal Street
Chicago, Illinois 60607-4523
RE: Protest 3901-96-102880, Ketjenblack EC-600JD
Dear Port Director:
This is our decision on protest 3901-96-102880, timely filed
December 11, 1996, against your decision in the classification of
Ketjenblack EC-600JD , under the Harmonized Tariff Schedule of
the United States (HTSUS). In preparing this decision, we have
also considered supplemental submissions dated October 30 and
November 10, 1997, as well as, January 28 and March 11, 1998,
from counsel for the protestant.
FACTS:
The subject merchandise consists of a carbon product,
commercially known as Ketjenblack EC-600JD ("Ketjenblack"). A
laboratory report issued on August 6, 1996, by the U.S. Customs
Laboratory indicates that the subject "Ketjenblack" is activated
carbon
Upon entry, the protestant classified the Ketjenblack in
subheading 2803.00.0010, HTSUS, under the provision for "[c]arbon
(carbon black and other forms of carbon not elsewhere specified
or included) . . . Carbon black . . . ," at the free rate of
duty. In support of its claim, the protestant made various
submissions, including the following:
(1) Marketing literature describing the merchandise as
a carbon black with a unique morphology making it
extremely suitable for electro conductivity
applications. It is sold primarily in the
thermoplastic and rubber industries and its end
uses consist of packaging for electronic chip
material, making conductive plastic, as a black
pigment and as a reinforcing agent to natural and
synthetic rubbers in a variety of applications.
It can be highly adsorbent with a large surface
area similar to that of activated carbon; however,
its physical form is different from that of
activated carbon.
(2) A description of the manufacturing process using a
naphtha-derived by-product as starting material;
(3) A critique of U.S. Customs Laboratory report, 3-96-30200-001, dated August 6, 1996, concerning the
subject merchandise.
(4) An analysis of the General Rules of Interpretation
(GRIs) and the relevant Explanatory Notes (ENs)
with added comments on principles of
classification;
(5) Six exhibits in support of the above, including
transmission electronic microscopy (TEM) data
illustrating the physical difference in particle
size between Ketjenblack and activated carbon.
Alternatively, the protestant claimed classification in
subheading 3206.49.4000, HTSUS, under the provision for "[o]ther
coloring matter . . . : Other coloring matter and preparations:
Other: Preparations based on carbon black." However, the
importer provided no support for its alternative claim.
In view of the laboratory report and the fact that the
merchandise has characteristics of both carbon black and
activated carbon, you liquidated the entries of Ketjenblack, by
application of GRI 3(c), under subheading 3802.10.0000, HTSUS,
the provision for [a]ctivated carbon; activated natural mineral
products; animal black including spent animal black: Activated
carbon: dutiable at the rate of 4.8 percent ad valorem.
ISSUE:
Whether the Ketjenblack is classifiable in heading
2803.00.0010, HTSUS, as carbon black or in heading 3802.10.0000,
HTSUS, as activated carbon.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the Harmonized System is such that virtually all goods
are classified by application of GRI 1, that is, 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 GRIs may then
be applied. The Harmonized Commodity Description and Coding
System Explanatory Notes (ENs), 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. See, T.D.
89-80, 54 Fed.Reg. 35127
(August 23, 1989).
U.S. Customs Laboratory Report No. 3-96-30200-001, amended
April 23, 1998, states that the sample has adsorption
characteristics similar to that of activated carbon. Scientific
literature indicates that superconductive furnace blacks have
been reported to have similar characteristics.
In HQ 086279, dated May 9, 1990, Customs addressed the
classification of anthracite, primarily used as filter media, and
classified that substance under subheading 3802.10.00. There,
Customs assumed that the substance was activated and advised that
the result may be different if the substance was not activated
carbon. It also indicated that the lab report was inconclusive
and that there was a need for additional information regarding
the description of the process of activation in order to give a
definite determination.
EN 38.02 states that carbon and mineral substances are said
to be activated when their superficial structure has been
modified by appropriate treatment (with heat, chemicals, etc.) in
order to make them suitable for certain purposes, such as
decolorization, gas or moisture adsorption, catalysis, ion
exchange or filtering. It also indicates that the heading
includes activated carbon that is usually obtained by treatment
of vegetable, mineral or other carbon at high temperature in the
presence of steam, carbon dioxide or other gases or by dry
calcination of cellulosic materials impregnated with solutions of
certain chemicals.
EN 28.03 indicates that carbon black results from the
incomplete combustion or cracking (by heat, by electric arc or by
electric spark) of organic substances rich in carbon, such as
natural gases (methane, anthracenic gases and acetylene) and
naphthalene, resins, and oils. Carbon black may also be
described as channel black or furnace black according to the
method of production and is used as a pigment, in making carbon
paper and as a reinforcing agent in the rubber industry.
Our search of the scientific literature indicates that in
Chemical Abstract Services' (CAS) National Chemical Inventory,
under CAS Registry No.1333-86-4 (assigned to carbon black), there
are 18 Ketjenblacks, including 600JD and EC-DJ600, listed as
other names for carbon black. There are no Ketjenblacks listed
under CAS Registry No 7440-44-0 (assigned to carbon). However,
activated carbon, brand and coded products identified as
adsorbent and brand named products known to be activated carbon,
are listed under this registry number.
According to Kirk-Othmer's Encyclopedia of Chemical
Technology (K&O), "carbon black" is a generic term for an
important family of products used principally for the
reinforcement of rubber, as a black pigment and for its
electrically conductive properties. The products differ from
other forms of bulk carbon in that they are particulate, composed
of aggregates having complex configuration, quasigraphitic in
structure, and of colloidal dimensions. They also differ in
their origin in the vapor phase through the thermal decomposition
and partial combustion of hydrocarbons.
Furthermore, K&O describes "activated carbon" as a
predominantly amorphous solid that has an extraordinarily large
internal surface area and pore volume and indicates that it is an
exceptionally versatile adsorbent. Through choice of precursor,
method of activation and control of processing, the adsorptive
properties are tailored for applications as diverse as the
purification of potable water and the control of gasoline
emissions from motor vehicles. Its physical properties include
pore widths that are described as ranging from less than 2
nanometers (nm) to greater than 50 nm.
According to McGraw-Hill's Multimedia Encyclopedia of
Science and Technology, "activation of carbon" is described as
the process of treating carbon to open an enormous number of
pores in the 1.2 to 20 nm diameter range (gas adsorbent carbon)
or up to 100 nm diameter range (decolorizing carbons). In
laymen's terms, the process explodes the carbon particle to a
huge carbon particle shaped with an enormous number of
microscopic holes, a process similar to that of heat popping a
kernel of corn to form popcorn, but on a much greater scale.
We note that the particle size of "Ketjenblack" (as
indicated by TEM data submitted by the importer) is approximately
30-40 nm, 1/20,000th the particle size of a sample of activated
carbon (approximately 600-700 microns). It appears to be the
size of a mesopore of an activated carbon particle, according to
the standards of the International Union of Pure and Applied
Chemistry (referenced in K&O).
The Ketjenblack is manufactured for the purposes stated in
the commercial literature, using starting material similar to
that described in EN 28.03. "Ketjenblack" is equivalent to
products described in the scientific literature as carbon black
or superconductive furnace black.
In sum, although the "Ketjenblack" has adsorption
characteristics similar to that of activated carbon, we find that
it is not activated carbon as described in the EN or in the
scientific literature. Therefore, the "Ketjenblack" is properly
classified, by application of GRI 1, in subheading 2803.00.0010,
HTSUS.
HOLDING:
The Ketjenblack EC-600JD is classifiable in subheading
2803.00.0010, HTSUS, with the applicable duty rate of free
(1996).
You are instructed to allow the protest in full. 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 on the
protest.
In accordance with Section 3A (11)(b) of Customs Directive
0993550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this
decision, together with the Customs Form 19, 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, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division