HQ 961999

September 28, 1998

CLA-2 RR:CR:GC 961999 PH

CATEGORY: Classification

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