CLA-2-38:OT:RR:NC:N2:237
Mohammed A. Rahoof
Import Manager
Yusen Air & Sea Services
405-T Victory Avenue
South San Francisco, CA 94080
RE: The tariff classification of two surface modified graphite powders from Japan.
Dear Mr. Rahoof:
In your letter dated February 12, 2010, on behalf of the Hitachi Chemical Company, you requested a tariff classification ruling. You provided Material Safety Data Sheets for our review.
MAGD surface modified graphite powder consists of artificial graphite produced from carbon (coke) graphitized at temperatures exceeding 2500C and surface modified with a minute coating of amorphous carbon. The imported product will be used in making preparations for coating copper plates in lithium ion batteries.
SMGA/SMGN surface modified graphite powder consists of a mixture of: (1) SMGA artificial graphite produced from carbon (coke) graphitized at temperatures exceeding 2500C and surface modified with a minute coating of amorphous carbon; and (2) SMGN surface modified natural graphite graphitized naturally over time and surface modified with a minute coating of amorphous carbon. The artificial graphite content of the mixture will vary from 50% to more, based on customer performance specifications (for example, 50/50, 70/30, 80/20, etc.). The imported product will be used in making preparations for coating copper plates in lithium ion batteries. The artificial graphite imparts the essential character of the mixture.
In your letter you suggest classification under subheading 2803.00.0050, HTSUS, for Carbon (carbon blacks and other forms of carbon not elsewhere specified or included). However, artificial graphite is excluded under this provision and must be classified elsewhere in the tariff as explained below.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 28.03, in pertinent part, excludes: (d) Artificial graphite (e.g., heading 38.01). The EN to heading 38.01 (3), in pertinent part, provides: Artificial graphite (electro-graphite) is a variety of carbon, usually prepared in an electric furnace by heating a mixture of finely ground coke and carbonaceous binders to a sufficiently high temperature (2500 to 3200C) to ensure its graphitization to obtain a homogeneous microcrystalline structure.
The applicable subheading for MAGD or SMGA/SMGN graphite powder will be 3801.10.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Artificial graphite: Other. The rate of duty will be free.
This merchandise may be subject to the requirements of the Toxic Substances Control Act (TSCA), which are administered by the U. S. Environmental Protection Agency. Information on the TSCA can be obtained by contacting the EPA at 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, by calling the TSCA Assistance Line at (202) 554-1404, by Fax at (202) 554-5603, by e-mail to: [email protected] or by visiting their website at www.epa.gov.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
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 Frank Cantone at (646) 733-3038.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division