CLA-2 CO:R:C:M 956145 KCC
District Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230
Attn: Protest Reviewer
RE: Protest 3004-94-100041; Clayburn Bedding Mix; 3816.00.00;
refractory; Additional U.S. Note 2, Chapter 69; HRL 956708
reconsidered NY 886711; Calcined Fireclay P
Dear District Director:
This pertains to Protest 3004-94-100041, concerning the
tariff classification of Clayburn Bedding Mix under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protestant describes the Clayburn Bedding Mix as being
composed of 60% to 65% Silica and 22% to 28% Alumina. The
protestant states that it is formulated specifically for aluminum
electrolytic cells as a bedding layer under carbon cathodes and
has the special property of resisting the penetration of
cryolitic bath coming through the carbon cathode blocks by
reacting with the components of the cryolitic bath and sintering
quickly to form a sealing layer at a service temperature of
around 900 degrees Celsius.
Upon importation, the entry of the Clayburn Bedding Mix was
liquidated on December 10, 1993, under subheading 6815.99.40,
HTSUS, as other articles of stone or of other mineral substances,
not elsewhere specified or included. This classification is
based on Customs Laboratory Reports No. 8-93-20383-001 and No. 8-93-20381-001 dated March 5, 1993, both of which examined Clayburn
Bedding Mix and found that:
The sample, a reddish-brown powder, is composed largely of
earthy or mineral compounds of silicon, aluminum magnesium,
calcium and iron. It does not have the characteristics of a
portland-cement type preparation; it will not "set" as a
mortar, either under water, in air, or when fired. It is
not refractory; it melts when tested as prescribed in
Chapter 69, U.S. Note 2, HTSUS.
In a protest timely filed on February 23, 1994, the
protestant contends that the Clayburn Bedding Mix is properly
classified under subheading 3816.00.00, HTSUS, as refractory
cements, mortars, concretes and similar compositions. As
evidence of classification under subheading 3816.00.00, HTSUS,
the protestant submitted New York Ruling (NY) 886711 dated
September 28, 1993, which classified its "Calcined Fireclay P"
under subheading 3816.00.00, HTSUS. The protestant states that
Calcined Fireclay P and Clayburn Bedding Mix are the same
product; the name was changed for marketing purposes only.
The competing subheadings are as follows:
3816.00.00 Refractory cements, mortars, concretes and similar
compositions, other than products of heading
3801....
6815.99.40 Articles of stone or of other mineral substances
(including articles of peat), not elsewhere
specified or included...Other
articles...Other...Other.
ISSUE:
Is the Clayburn Bedding Mix classified under subheading
3816.00.00, HTSUS, as refractory cements, mortars, concretes and
similar compositions?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to terms of the headings and any
relative section or chapter notes...."
Subheading 3816.00.00, HTSUS, provides for "Refractory
cements, mortars, concretes and similar compositions, other than
products of heading 3801...." The term "refractory" is not
defined in Chapter 38 or Section VI, HTSUS. However, Additional
U.S. Note 2, Chapter 69, HTSUS, states that:
..."refractory" is applied to articles which have a
pyrometric cone equivalent of at least 1500 degrees Celsius
when heated at 60 degrees Celsius per hour (pyrometric cone
18). Refractory articles have special properties of
strength and resistance to thermal shock and may also have,
depending upon the particular uses for which designed, other
special properties such as resistance to abrasion and
corrosion.
Tariff terms are required to be interpreted consistently
where they appear throughout the tariff schedule. Therefore,
since the term "refractory" is not defined in Chapter 38 or
Section VI, HTSUS, we feel that turning to Chapter 69, HTSUS, for
a definition of "refractory" is proper.
The Office of Laboratories and Scientific Services issued a
memorandum to all Laboratory Directors on July 26, 1993,
detailing a standard testing procedure for refractory mortars.
The Office of Laboratories and Scientific Services thoroughly
reviewed the different testing methods and requirements of
refractory mortars, as well as the various technological
definitions of refractory, and determined that refractory mortars
are tested and classified by the American Society of Testing
Materials (ASTM) using different methods and requirements.
Therefore, in the interest of interpreting the tariff terms
consistently, the Office of Laboratories and Scientific Services
determined that the definition of "refractory" in Additional U.S.
Note 2, Chapter 69, HTSUS, was an acceptable definition for the
term "refractory mortars" of heading 3816, HTSUS.
Since the laboratory reports found that the Clayburn Bedding
Mix did not meet the definition of "refractory" in Additional
U.S. Note 2, Chapter 69, HTSUS, it is not classifiable under
subheading 3816.00.00, HTSUS.
The protestant contends that the Clayburn Bedding Mix should
be classified under subheading 3816.00.00, HTSUS, pursuant to NY
886711 because the Clayburn Bedding Mix is the same product as
the Calcined Fireclay P in NY 886711. The protestant states
Calcined Fireclay P was renamed to Clayburn Bedding Mix for
marketing purposes. However, the information provided by the
protestant indicates that the Clayburn Bedding Mix and Calcined
Fireclay P are not the exact same product. The Calcined Fireclay
P is composed of 60% to 65% Silica, 28% to 33% Alumina, and 2% to
2.5% Iron, whereas the Clayburn Bedding Mix is composed of 60% to
65% Silica and 22% to 28% Alumina. Therefore, NY 886711 is
inapplicable to the Clayburn Bedding Mix under consideration.
Moreover, the classification of Calcined Fireclay P under
subheading 3816.00.00, HTSUS, in NY 886711 is presently being
reconsidered in Headquarters Ruling Letter (HRL) 956708.
HOLDING:
The Clayburn Bedding Mix is classified under subheading
6815.99.40, HTSUS, as other articles of stone or of other mineral
substances, not elsewhere specified or included.
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with
the Customs Form 19, 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 Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act, and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division