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HQ 960476




May 7, 1998

CLA-2 RR:CR:GC 960476 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2803.00.0010

Port Director of Customs
610 S. Canal Street
Chicago, Illinois 60607-4523

RE: Protest 3901-96-102880, Ketjenblack EC-600JD

Dear Port Director:

This is our decision on protest 3901-96-102880, timely filed December 11, 1996, against your decision in the classification of Ketjenblack EC-600JD , under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision, we have also considered supplemental submissions dated October 30 and November 10, 1997, as well as, January 28 and March 11, 1998, from counsel for the protestant.

FACTS:

The subject merchandise consists of a carbon product, commercially known as Ketjenblack EC-600JD ("Ketjenblack"). A laboratory report issued on August 6, 1996, by the U.S. Customs Laboratory indicates that the subject "Ketjenblack" is activated carbon

Upon entry, the protestant classified the Ketjenblack in subheading 2803.00.0010, HTSUS, under the provision for "[c]arbon (carbon black and other forms of carbon not elsewhere specified or included) . . . Carbon black . . . ," at the free rate of duty. In support of its claim, the protestant made various submissions, including the following:

(1) Marketing literature describing the merchandise as a carbon black with a unique morphology making it extremely suitable for electro conductivity applications. It is sold primarily in the thermoplastic and rubber industries and its end uses consist of packaging for electronic chip material, making conductive plastic, as a black pigment and as a reinforcing agent to natural and synthetic rubbers in a variety of applications. It can be highly adsorbent with a large surface area similar to that of activated carbon; however, its physical form is different from that of activated carbon.

(2) A description of the manufacturing process using a naphtha-derived by-product as starting material;

(3) A critique of U.S. Customs Laboratory report, 3-96-30200-001, dated August 6, 1996, concerning the subject merchandise.

(4) An analysis of the General Rules of Interpretation (GRIs) and the relevant Explanatory Notes (ENs) with added comments on principles of classification;

(5) Six exhibits in support of the above, including transmission electronic microscopy (TEM) data illustrating the physical difference in particle size between Ketjenblack and activated carbon.

Alternatively, the protestant claimed classification in subheading 3206.49.4000, HTSUS, under the provision for "[o]ther coloring matter . . . : Other coloring matter and preparations: Other: Preparations based on carbon black." However, the importer provided no support for its alternative claim.

In view of the laboratory report and the fact that the merchandise has characteristics of both carbon black and activated carbon, you liquidated the entries of Ketjenblack, by application of GRI 3(c), under subheading 3802.10.0000, HTSUS, the provision for [a]ctivated carbon; activated natural mineral products; animal black including spent animal black: Activated carbon: dutiable at the rate of 4.8 percent ad valorem.

ISSUE:

Whether the Ketjenblack is classifiable in heading 2803.00.0010, HTSUS, as carbon black or in heading 3802.10.0000, HTSUS, as activated carbon.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the Harmonized System is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. See, T.D. 89-80, 54 Fed.Reg. 35127
(August 23, 1989).

U.S. Customs Laboratory Report No. 3-96-30200-001, amended April 23, 1998, states that the sample has adsorption characteristics similar to that of activated carbon. Scientific literature indicates that superconductive furnace blacks have been reported to have similar characteristics.

In HQ 086279, dated May 9, 1990, Customs addressed the classification of anthracite, primarily used as filter media, and classified that substance under subheading 3802.10.00. There, Customs assumed that the substance was activated and advised that the result may be different if the substance was not activated carbon. It also indicated that the lab report was inconclusive and that there was a need for additional information regarding the description of the process of activation in order to give a definite determination.

EN 38.02 states that carbon and mineral substances are said to be activated when their superficial structure has been modified by appropriate treatment (with heat, chemicals, etc.) in order to make them suitable for certain purposes, such as decolorization, gas or moisture adsorption, catalysis, ion exchange or filtering. It also indicates that the heading includes activated carbon that is usually obtained by treatment of vegetable, mineral or other carbon at high temperature in the presence of steam, carbon dioxide or other gases or by dry calcination of cellulosic materials impregnated with solutions of certain chemicals.

EN 28.03 indicates that carbon black results from the incomplete combustion or cracking (by heat, by electric arc or by electric spark) of organic substances rich in carbon, such as natural gases (methane, anthracenic gases and acetylene) and naphthalene, resins, and oils. Carbon black may also be described as channel black or furnace black according to the method of production and is used as a pigment, in making carbon paper and as a reinforcing agent in the rubber industry.

Our search of the scientific literature indicates that in Chemical Abstract Services' (CAS) National Chemical Inventory, under CAS Registry No.1333-86-4 (assigned to carbon black), there are 18 Ketjenblacks, including 600JD and EC-DJ600, listed as other names for carbon black. There are no Ketjenblacks listed under CAS Registry No 7440-44-0 (assigned to carbon). However, activated carbon, brand and coded products identified as adsorbent and brand named products known to be activated carbon, are listed under this registry number.

According to Kirk-Othmer's Encyclopedia of Chemical Technology (K&O), "carbon black" is a generic term for an important family of products used principally for the reinforcement of rubber, as a black pigment and for its electrically conductive properties. The products differ from other forms of bulk carbon in that they are particulate, composed of aggregates having complex configuration, quasigraphitic in structure, and of colloidal dimensions. They also differ in their origin in the vapor phase through the thermal decomposition and partial combustion of hydrocarbons.

Furthermore, K&O describes "activated carbon" as a predominantly amorphous solid that has an extraordinarily large internal surface area and pore volume and indicates that it is an exceptionally versatile adsorbent. Through choice of precursor, method of activation and control of processing, the adsorptive properties are tailored for applications as diverse as the purification of potable water and the control of gasoline emissions from motor vehicles. Its physical properties include pore widths that are described as ranging from less than 2 nanometers (nm) to greater than 50 nm.

According to McGraw-Hill's Multimedia Encyclopedia of Science and Technology, "activation of carbon" is described as the process of treating carbon to open an enormous number of pores in the 1.2 to 20 nm diameter range (gas adsorbent carbon) or up to 100 nm diameter range (decolorizing carbons). In laymen's terms, the process explodes the carbon particle to a huge carbon particle shaped with an enormous number of microscopic holes, a process similar to that of heat popping a kernel of corn to form popcorn, but on a much greater scale.

We note that the particle size of "Ketjenblack" (as indicated by TEM data submitted by the importer) is approximately 30-40 nm, 1/20,000th the particle size of a sample of activated carbon (approximately 600-700 microns). It appears to be the size of a mesopore of an activated carbon particle, according to the standards of the International Union of Pure and Applied Chemistry (referenced in K&O).

The Ketjenblack is manufactured for the purposes stated in the commercial literature, using starting material similar to that described in EN 28.03. "Ketjenblack" is equivalent to products described in the scientific literature as carbon black or superconductive furnace black.

In sum, although the "Ketjenblack" has adsorption characteristics similar to that of activated carbon, we find that it is not activated carbon as described in the EN or in the scientific literature. Therefore, the "Ketjenblack" is properly classified, by application of GRI 1, in subheading 2803.00.0010, HTSUS.

HOLDING:

The Ketjenblack EC-600JD is classifiable in subheading 2803.00.0010, HTSUS, with the applicable duty rate of free (1996).

You are instructed to allow the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed 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 Ruling 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

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