CLA-2-38:OT:RR:NC:N2:237
Ms. Becky Stahl
Trans World Shipping Service, Inc.
3206 Frenchmens Road
P.O. Box 795
Toledo, Ohio 43697-0795
RE: The tariff classification of activated Carbon Molecular Sieves (CMS) from China.
Dear Ms. Stahl:
In your letter received here on February 28, 2014, on behalf of Great Lakes Air Products, Inc., you requested a tariff classification ruling. You provided a CMS Test Data Sheet, MSDS Sheets and a sample for our review. Your sample is being returned.
Carbon Molecular Sieves (CMS) consist of activated cylindrical-shaped black carbon grains (1.0-1.3mm D x 1.0-5mm L) used in the Pressure Swing Adsorption (PSA) process to filter, separate and produce nitrogen and oxygen gases for the chemical, petrochemical, metallurgical industries.
CMS are microporous adsorbents used in the separation of gas molecules. CMS are made with average pore dimensions similar to critical dimensions of particular gas molecules. CMS exhibit molecular sieve behavior because a small change in the average pore size can significantly affect the rate of diffusion of a gas molecule through the pore structure. CMS adsorb gas molecules with only slightly varying critical dimensions (e.g., 0.2A) at rates that vary. CMS are made from carbon (e.g., coal char) under controlled conditions of heat treatment and activation. CMS pore size modification is achieved by the thermal cracking of a suitable hydrocarbon gas within the pores of the char. CMS are the most important part of the PSA process used to separate oxygen from nitrogen and produce high purity nitrogen gas. PSA separation of the air components relies on the fact that oxygen (3.46A) diffuses into the carbon more rapidly than nitrogen (3.68A). PSA produces nitrogen as the high pressure product and oxygen as the low pressure product.
You suggest that CMS differ from other activated carbons in heading 3802, HTSUS, because CMS are produced by a complex and expensive process that controls pore size to within a few tenths of a nanometer (e.g., 0.2A). You suggest that CMS should be classified in subheading 3824.90, HTSUS, which provides for mixtures not elsewhere specified or included. However, CMS is not a mixture (in heading 3824) but an activated carbon (95% carbon with traces of naturally occurring minerals) and therefore, more specifically provided for in heading 3802, HTSUS, which provides for activated carbon and other activated mineral products.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), while neither legally binding nor dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). EN 38.02 (A) is relevant to CMS:
(A) ACTIVATED CARBON; ACTIVATED NATURAL MINERAL PRODUCTS
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 decolorizing, gas or moisture adsorption, catalysis, ion-exchange or filtering. These products fall into the following groups:
(I) Products generally characterized by a very large specific surface (of the order of hundreds of square meters per gram), and by the presence of van der Waal’s bonds (physical adsorption) or free chemical bonds saturable by organic or inorganic molecules (chemical adsorption).
(II) These products are obtained by chemical or heat treatment of certain vegetable or mineral substances (clay, bauxite, etc.) in the presence of natural impurities or added foreign matter. This treatment causes a change in the structure of the basic substance, accompanied by an increase in the specific surface, and, in the case of crystalline substances, distortions in the lattice due to the insertion or substitution of atoms with different valences. The valences which thus remain free can cause the condensation of protons or electrons on the surface, rendering the product active as a chemical adsorbent, a catalyst or an ion-exchanger.
(III) Products which generally have a fairly small specific surface (of the order of 1 to 100 m²/g). Although they generally have a high electrical charge density, these products have no marked capacity for adsorption and therefore are not decolorizing agents. On the other hand, in aqueous suspension they establish powerful electrostatic interactions with colloids, facilitating or inhibiting their coagulation, and are therefore suitable for use as filtering agents.
Products of this type are also generally obtained by appropriate heat treatment. The presence of alkaline substances during calcining process sometimes encourages formation of surface charges.
The heading includes:
(a) 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 cellulosic materials impregnated with solutions of certain chemicals (chemical activation).
Activated carbon is used as a fine powder for decolorizing liquids in many industries (sugar or glucose manufacture, oil or wine industry, medicaments, etc.). In the form of grains, it is used for adsorbing vapors (for example, in recovering volatile solvents during dry-cleaning processes, removing benzene from coal gas), for purifying water or air, as protection against toxic gases, in catalysis, or for eliminating accumulation of gas at electrodes during electrolysis (depolarization).
Carbon Molecular Sieves consisting of microporous adsorbents obtained by treating carbon (e.g., coal char) under controlled conditions of heat treatment and activation for use in filtering and separating gas molecules meet the description for activated carbon in EN 38.02.
The applicable subheading for the activated Carbon Molecular Sieves will be 3802.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Activated carbon. The rate of duty will be 4.8% ad valorem.
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 401 M Street, S.W., Washington, D.C. 20460, telephone number (202) 554-1404, or by visiting their website at www.epa.gov.
Certain activated carbon from the People's Republic of China may be subject to anti-dumping duties administered by the U.S. Department of Commerce, Import Administration. You may contact Catherine Bertrand, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone number : (202) 482- 3207; or by visiting their website at www.enforcement.trade.gov/site-index.
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,
Gwenn Klein Kirschner
Acting Director
National Commodity Specialist Division