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HQ 088850




August 26, 1991

CLA-2 CO:R:C:F 088850 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3801.10.10

District Director
U.S. Customs Service
110 S. Fourth Street
Minneapolis, MN 55401

RE: Application for Further Review of Protest No. 3701-90- 000065, dated November 2, 1990, concerning unmachined carbon inserts

Dear Sir:

This is a decision on a protest filed November 2, 1990, against your decision in the classification of the merchandise in entry number 3220xxxxxxx, liquidated August 31, 1990.

FACTS:

The protestant entered the goods in subheading 3801.10.50 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a residual provision for artificial graphite plates wholly or partly manufactured other than for the manufacturing into brushes for electrical generators, motors or other machines or appliances, to be entered free of duty. Upon reclassification of the goods to subheading 8545.20.00, which provides for carbon brushes and other articles of graphite of a kind used for electrical purposes, the rate of duty was advanced to 3.7 percent ad valorem. You are of the opinion that the proper classification of the subject goods is subheading 3801.10.10, which provides for artificial graphite plates, wholly or partly manufactured for manufacturing into brushes for electrical generators, motors or other machines or appliances, dutiable at 3.7 percent ad valorem.

The goods are unmachined carbon inserts, made of grade BH25C graphite. Protestant claims that the goods are not used in the manufacturing of brushes, but are used in the manufacturing of trolley bus inserts. To resolve this issue, therefore, it must be determined if a trolley bus insert is an electrical brush.

ISSUE:

What is the proper classification under the HTSUSA of carbon trolley bus inserts?

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.

GRI 2(a) provides that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the imcomplete or unfinished article has the essential character of the complete or finished article.

GRI 6 provides that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, according to GRI 1-5.

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.

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.

Protestant's argument makes a distinction without a difference. A trolley bus insert is an electrical brush, as the common meaning of "electric brush" is understood. In Morganite, Inc. v. U.S., 29 Cust.Ct. 76 at 82 (C.D. 1448) (1952), the court was called upon to determine if imported goods were properly classifiable as articles composed of carbon or graphite, not specially provided for, as Customs had determined, or whether they were brushes for electric motors, as the importer/plaintiff claimed. The court stated that "[t]he common meaning of the term 'brush' * * * would include plates or rods of carbon used to provide a passage for an electrical [sic] current such as would pick up current from a live rail. Such common meaning, in the opinion of the court, is sufficiently broad to include plates or rods of carbon used to provide a passage for an electric current such as would also pick up current from a live wire," Id., 82. We find the foregoing reasoning equally applicable to the present statute, in that subheading 3801.10.1000, HTSUSA, speaks quite specifically to, inter alia, plates for manufacturing into brushes for electric motors or other machines.

We are of the opinion that the subject article is properly classifiable under subheading 3801.10.10, HTSUSA, artificial graphite; plates, rods and other forms wholly or partly manufactured, for manufacturing into brushes for electric motors or other machines, dutiable at the rate of 3.7 percent ad valorem.

Since the rate of duty for the independently arrived at classification is the same as the rate for the liquidated classification, you are instructed to deny the protest in full.

HOLDING:

Carbon trolley bus inserts 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. Merchandise classified under this subheading for the year 1990 is subject to a general rate of duty of 3.7 percent ad valorem.

Sincerely,

John Durant, Director

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