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HQ 961999

September 28, 1998

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.


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.


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.


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.


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.


John Durant, Director,

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