CLA-2 RR:CR:GC 961999 PH
TARIFF NOs.: 3801.10.50; 8545.90.40
Port Director
U.S. Customs Service
511 NW Broadway
Portland, OR 97209
RE: Protest 2904-98-100019; artificial machined graphite;
articles of graphite of a kind used for electrical purposes;
ENs 38.01; 85.45
Dear Port Director:
This is our decision on protest 2904-98-100019, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain machined graphite products.
FACTS:
The merchandise is invoiced as "ARTIFICIAL MACHINED GRAPHITE
PRODUCTS AND OTHERS". According to information received in
response to a Request for Information, the merchandise consists
of a variety of graphite pieces to be consumed in the importer's
"testing" phase. Most articles were to be used for heater
elements for a furnace with a limited life expectancy (the
duration of the "testing" phase), and jigs and test pieces to go
into a furnace to test the heating/coating process. The pieces
were to be destroyed so that the importer could examine the
thickness and quality of the coating process. None of the items
were intended for resale.
The entry was filed on November 14, 1996, and, after timely
extension of liquidation with proper notice, was liquidated on
February 13, 1998, with classification in subheading 8545.90.40,
HTSUS. The importer's broker filed this protest on May 6, 1998,
contending that classification should be in subheading
3801.10.50, HTSUS.
The HTSUS 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.
8545.90.40 Carbon 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: ... Other: ...
Other.
The 1996 general column one rate of duty for goods classifiable
under this provision is 2.9% ad valorem.
ISSUE:
Whether the machined artificial graphite articles are
classifiable as other artificial graphite in subheading
3801.10.50, HTSUS, or other articles of graphite of a kind used
for electrical purposes in subheading 8545.90.40, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
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.
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 under the System. 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 38.01 states in part:
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.
...
The heading does not cover:
...
(c) Artificial graphite surface-worked, surface-finished,
cut to special shapes, lathe-worked, drilled, milled, etc.,
or transformed into articles. If of a kind used for
non-electrical purposes these usually fall in heading 68.15
(e.g., filters, discs, bearings, moulds, acid-resistant
bricks, etc.); those of a kind used for electrical purposes
fall in heading 85.45.
The articles under consideration are cut to special shape
and transformed into articles. Thus, under the exclusion from
heading 3801 quoted above from EN 38.01, they are not covered by
heading 3801.
EN 85.45 states in part:
This heading covers all articles of graphite or other carbon
which are recognisable by their shape, dimensions or
otherwise, as being for electrical purposes, whether or not
they contain metal.
The EN specifically lists numerous graphite or carbon
articles so recognizable and included in the heading. Those
articles include various kinds of carbon electrodes (in the form
of cylinders, rods, plates, bars, etc.), carbon brushes (usually
cut from carbon blocks or plates as described in EN 38.01),
arc-lamp or other lamp carbons, battery carbons, carbon parts of
microphones, other articles of graphite or other carbon (such as
connecting pieces (nipples) for joining together furnace carbons;
anodes, grids and screens for rectifying valves; heating
resistors (in the form of rods, bars, etc., for various types of
heating apparatus); resistance discs and plates for automatic
voltage regulators; and other contacts or electrodes of carbon).
The articles under consideration are either included in the
above list or are similar to the articles listed therein. They
are of a kind used for electrical purposes. Accordingly, the
merchandise is classified as other articles of graphite of a kind
used for electrical purposes in subheading 8545.90.40, HTSUS.
This is consistent with the general applicability of chapters 38
and 85 (the former generally covers material for manufacturing
and semi-manufactures; the latter covers manufactured articles)
as well as the general organization of the HTSUS. In regard to
the latter, see Customs Laws & Administration by Ruth F. Sturm
(1995), 50.4, p. 20, according to which:
The Harmonized System has been organized according to levels
of processing, so that so-called primary products are
classified in early chapters and more complex products in
later ones.
For the information of the protestant, insofar as future
importations for testing are concerned, we note that under
subheading 9813.00.30, HTSUS, articles intended solely for
testing, experimental or review purposes, may be temporarily
imported free of duty, under a bond for their exportation within
1 year from the date of importation (upon satisfactory proof that
any article admitted under subheading 9813.00.30, HTSUS, has been
destroyed because of its use for any purpose provided in the
subheading, the obligation under the bond to export is treated as
satisfied). Articles imported under this provision may not be
imported for sale or for sale on approval. The 1-year period for
exportation may be extended for one or more further periods
which, when added to the initial year, may not exceed a total of
3 years. The U.S. Notes in Chapter 98, Subchapter XIII, HTSUS,
concern temporary importations under bond under this provision.
The Customs Regulations concerning such temporary importations
under bond are found in 19 CFR 10.31 through 10.40.
HOLDING:
The machined artificial graphite articles are classifiable
as other articles of graphite of a kind used for electrical
purposes in subheading 8545.90.40, HTSUS.
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with
the Customs Form 19, 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 Rulings 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