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NY D85014




December 11, 1998

CLA-2-38:RR:NC:N2:237 D85014

CATEGORY: CLASSIFICATION

TARIFF NO: 3802.10.0000

Mr. Steve Bier
Pacific Rim Enterprises, LLC
756 Hobitt Avenue
Clovis, California 93612

RE: The classification and country of origin determination for activated charcoal from Vietnam, China or the Cook Islands.

Dear Mr. Bier:

In your letter received November 24, 1998 you requested a tariff classification and country of origin determination.

The product is described as steam activated coconut shell charcoal. Under one scenario, the product is entirely processed in Vietnam and shipped to the United States. Under a second scenario, the coconut shells are charred in Vietnam and the resultant charcoal exported to China or the Cook Islands, where it is steam activated, packaged in 100-500lb bags, and shipped to the United States. The product is intended for waste removal in water filtration systems.

CLASSIFICATION:

Classification of merchandise under the Harmonized Tariff Schedule of the United States, (HTSUS), is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes, and unless otherwise required, according to the remaining GRI's taken in order.

Heading 4402, HTSUS, provides for wood charcoal (including shell or nut charcoal), whether or not agglomerated. However, Legal Note 1.(d) to Chapter 44 provides: this chapter does not cover activated charcoal (heading 3802).

Heading 3802, HTSUS, in part, provides for activated carbon. Explanatory Note 38.02(a), in pertinent part, provides: The heading includes activated carbon. This is usually obtained by treating vegetable, mineral or other carbon (wood charcoal, coconut shell carbon, peat, lignite, coal, anthracite, etc.) at a high temperature in the presence of steam, carbon dioxide or other gases (gas activation), or by dry calcination of cellulose materials impregnated with solutions of certain chemicals (gas activation).

Accordingly, the applicable subheading for the steam activated coconut shell charcoal will be 3802.10.0000, HTSUS, which provides for activated carbon. If the country of origin is Vietnam, the column 2 rate of duty will be 45 percent ad valorem. If the country of origin is China or the Cook Islands, the column 1 rate of duty will be 4.8 percent ad valorem.

Articles classifiable under subheading 3802.10.0000, HTSUS, which are products of Cook Islands are eligible for duty free treatment under the Generalized System of Preferences (GSP) upon compliance with all applicable regulations.

COUNTRY OF ORIGIN:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C.1304. Section 134.1(b), Customs Regulations (19 CFR 134.1 (b)), defines "country of origin" as the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of this part. A substantial transformation occurs "when an article emerges from a process with a new name, character, or use different from that possessed by the article prior to processing." See Texas Instruments, Inc. v. United States, 69 CCPA 152, 681 F.2d 778 (1982) (cited with approval in Torrington Co. v. United States, 764 F. 2d 1563, 1568 (1985)).

In this case, the issue for consideration is whether the steam activation of coconut shell charcoal in another country effects a substantial transformation. In determining whether steam activation in another country constitutes a substantial transformation, the issue is whether the coconut shell charcoal emerges from the steam treatment with a new name, character, or use which differs from the original material subjected to the process.

According to McGraw-Hill's Multimedia Encyclopedia of Science and Technology (1997), the activation of carbon is described as the process of treating carbon to open an enormous number of pores; in the activated state, charcoal adsorbs gases, liquids, and solids; activation of the charcoal is accomplished by treatment of the substance with steam at 900 C; this tends to remove the adsorbed hydrocarbons from the surface; the surface area of activated chars produced by this technique is about 1000 m2/g; the adsorbing property of charcoal is related to the large surface area present.

HOLDING:

Under the first scenario, coconut shells are processed into activated charcoal in Vietnam and then exported directly to the United States without passing through the territory of any other country. Under these circumstances, the country of origin is Vietnam.

Under the second scenario, coconut shells are charred in Vietnam and the resultant coconut shell carbon (charcoal) is shipped to China or the Cook Islands, where it is activated by treatment with steam, packaged and exported to the United States. The steam treatment substantially transforms the coconut shell charcoal into a new and different article, having a new name (activated charcoal), character (adsorbent) and particular use (water filtration). Consequently, a substantial transformation has occurred and the country of origin is China or the Cook Islands.

This merchandise may be subject to the requirements of the Federal Food, Drug and Cosmetic Act, which is administered by the U.S. Food and Drug Administration. You may contact them at 5600 Fishers Lane, Rockville, Maryland 20857, telephone number (301) 443-6553.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 C.F.R. ?177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 C.F.R. ?177.2.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist F. Cantone at 212-466-5488.

Sincerely,

Robert B. Swierupski
Director,

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