CLA-2 CO:R:C:M 956708 KCC
Mr. David Walser
Arthur J. Humphreys Div.
Border Brokerage Co., Inc.
P.O. Box 249
Sumas, Washington 98295
RE: NY 886711 revoked; Calcined Fireclay P; 3816.00.00;
refractory; Additional U.S. Note 2, Chapter 69
Dear Mr. Walser:
This is in reference to (New York) NY 886711 issued to you
on September 28, 1993, on behalf of Clayburn Industries Ltd.,
which concerned the tariff classification of Calcined Fireclay P
under the Harmonized Tariff Schedule of the United States
(HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed revocation of
NY 886711 was published on August 17, 1994, in the Customs
Bulletin, Volume 28, Number 33.
FACTS:
The Calcined Fireclay P, at issue in NY 886711, was
described as follows:
...a powdered substance which you state has been
"formulated" for aluminum electrolytic cells as a bedding
layer under the carbon cathodes. Your diagram and technical
data sheet indicate that the product is a protective
"sealing layer" for brick pots.
In NY 886711, the Area Director, New York Seaport,
classified the Calcined Fireclay P under subheading 3816.00.00,
HTSUS, as refractory cements, mortars, concretes and similar
compositions. NY 886711 was based on Customs Laboratory Report
No. 2-93-21860-001 dated July 8, 1993, which determined that the
Calcined Fireclay P
...is a formulated powder composed of the oxides and
silicates of aluminum and iron. It has the properties of
calcined clay and is suitable as a mortar material or high
temperature furnace liner.
ISSUE:
Is the Calcined Fireclay P classified under subheading
3816.00.00, HTSUS, as refractory cements, mortars, concretes and
similar compositions?
LAW AND ANALYSIS:
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.
Customs Laboratory Report No. 2-93-21860-001 dated July 8,
1993, which determined that the Calcined Fireclay P had
"...properties of calcined clay and is suitable as a mortar
material or high temperature furnace liner", did not test the
Calcined Fireclay P pursuant to the definition of "refractory" in
Additional U.S. Note 2, Chapter 69, HTSUS.
After examining the testing procedure for refractory
mortars, 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.
An amended Customs Laboratory Report No. 2-94-20732-001
dated January 20, 1994, found that the Calcined Fireclay P failed
to meet the definition of "refractory" in Additional U.S. Note 2,
Chapter 69, HTSUS. Therefore, the Calcined Fireclay P is not
classified under subheading 3816.00.00, HTSUS, as refractory
cements, mortars, concretes and similar compositions.
As the Calcined Fireclay P is a formulated powder composed
of oxides and silicates of aluminum and iron, it is classified
under subheading 6815.99.40, HTSUS, which provides for "Articles
of stone or of other mineral substances (including articles of
peat), not elsewhere specified or included...Other
articles...Other...Other."
HOLDING:
The Calcined Fireclay P is classified under subheading
6815.99.40, HTSUS, as other articles of stone or of other mineral
substances, not elsewhere specified or included.
NY 886711 is revoked.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division