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HQ 951851


July 14, 1992

CLA-2 CO:R:C:F 951851 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3801.10.10; 3801.10.50

M. Kawatsuji, Chemicals Manager
Nichimen America Inc.
1185 Avenue of the Americas
New York, New York 10036

RE: Artificial graphite; electrical brushes; HQ 088850; AUSRI 1(b); NYRL 866470 modified

Dear Mr. Kawatsuji:

This is in reply to your letter (MK2250) dated August 12, 1991, in which you request a binding ruling on the classification of certain artificial graphite products.

This is also a decision on a reconsideration of NYRL 866470 (September 20, 1991), which classified certain identical merchandise under subheading 3801.10.10, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) and held that merchandise so classified would be entered free of duty.

FACTS:

The goods are semimanufactured artificial graphite articles ultimately intended to be used in crucibles and heaters for crystal growing furnaces for semiconductors, jigs for glass-to- metal sealing, electrodes for electrical discharge machining and bearings and seals for machines.

NYRL 866470, supra, classified identical merchandise under subheading 3801.10.10, HTSUSA, a provision for artificial graphite; plates, rods and other forms wholly or partly manufactured, for manufacturing into brushes for electric motors or other machines and held that merchandise so classified would be entered free of duty.

ISSUE:

What is the proper classification under the HTSUSA of artificial graphite semimanufactures?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

Explanatory Notes to the Harmonized Commodity Description and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading, and, although neither binding upon the contracting parties to the Harmonized System Convention nor considered to be dispositive interpretations, they should be consulted on the proper scope of the System.

Subheading 3801.10.10, HTSUSA, provides for artificial graphite plates, wholly or partly manufactured for manufacturing into brushes for electric generators, motors or other machines or appliances, dutiable at the column 1 general rate of duty of 3.7% ad valorem. Subheading 3801.10.50, provides for artificial graphite plates wholly or partly manufactured other than for manufacturing into brushes for electrical generators, motors or other machines or appliances, to be entered free of duty. Subheading 8545.20.00, provides for carbon brushes and other articles of graphite of a kind used for electrical purposes, dutiable at 3.7% ad valorem.

Explanatory Note 38.01(1) instructs that artificial graphite of heading 3801, HTSUSA, usually in the form of blocks, plates, etc., is used in the manufacturing of brushes (heading 3801) or other electrical carbon articles of heading 8545. Explanatory Note 85.45(D) advises that carbon brushes are used as sliding contacts for generators, motors, etc., as current-collectors for electric locomotives, etc., made very accurately to size and carefully machined to precise tolerances.

Clearly, as imported, the subject articles are not brushes as described in heading 8545, but articles of artificial graphite to be used in further manufacturing as described in heading 3801. accord, HQ 088850 (August 26, 1991).

We are of the opinion that the subject articles are properly classifiable under either of subheadings 3801.10.10 or 3801.10.50, HTSUSA, depending upon the subsequent uses for which a particular article will be further manufactured.

HOLDING:

Artificial graphite semimanufactures are properly classified under subheading 3801.10.10, HTSUSA, which provides for artificial graphite; plates, rods and other forms wholly or partly manufactured, for manufacturing into brushes for electric motors or other machines, when such use is intended. Merchandise classified under this subheading is subject to the column 1 general rate of duty of 3.7% ad valorem.

As subheading 3801.10.10 is an actual use provision governed by Additional U.S. Rule of Interpretation 1(b), HTSUSA, proof of actual use may be required in accordance with Customs Regulations.

Artificial graphite semimanufactures are properly classified under subheading 3801.10.50, HTSUSA, which provides for artificial graphite; plates, rods and other forms wholly or partly manufactured, other than for manufacturing into brushes for electric motors or other machines. Merchandise classified under this subheading may be entered free of duty.

This decision should be considered a modification of NYRL 866470 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 866470 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. For purposes of future transactions in merchandise of this type, NYRL 866470 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director

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