CLA-2 R:C:F 957455 K
Michael D. Sherman, Esq.
John B. Brew, Esq.
Counsel for Bitor America Corp.
Collier, Shannon, Rill & Scott
3050 K Street, N.W., Suite 400
Washington, D.C. 20007
RE: Revocation of New York Ruling Letter (NYRL) 857187;
"Orimulsion"
Dear Sirs:
In your letter of December 21, 1994, you requested that we
revoke NYRL 857187, dated November 15, 1990, which held that a
product known as "Orimulsion" from Venezuela, was classified as
bituminous mixtures based on natural asphalt, on natural bitumen,
on petroleum bitumen, on mineral tar or on mineral tar pitch, in
subheading 2715.00.00, Harmonized Tariff of the United States
(HTSUS), free of duty. You further requested that we rule that
the product is classified as other bitumen, natural, in
subheading 2714.90.00, HTSUS, also free of duty. This letter is
to inform you that NYRL 857187 no longer reflects the views of
the Customs Service and is revoked in accordance with section
177.9(d) of the Customs Regulations (19 CFR 177.9(d)). 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 NYRL 857187 was published on
June 21, 1995, in the Customs Bulletin, in Volume 29, No. 25.
The following represents our position.
FACTS:
The product contains 70 percent natural bitumen, 30 percent
water, and less than 1 percent of a surfactant and it is used as
a boiler fuel, primarily for electric utilities. It is stated
that the water is added for transportation purposes and that the
bitumen remains in its natural state.
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ISSUE:
The issue is whether the product is a natural bitumen or a
manufactured product based on bitumen.
LAW AND ANALYSIS:
Subheading 2714.90.00, HTSUS, provides for bitumen, natural,
whereas subheading 2715. 00.00, HTSUS, provides for bituminous
mixtures based on natural bitumen.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, which represents the official
interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and General Rules of
Interpretation of the HTSUS. The EN represents the considered
views of classification experts of the Harmonized System
Committee. While the Customs Service is not bound by the EN in
interpreting the HTSUS, the EN are to be given considerable
weight in Customs' interpretation of the HTSUS. It has,
therefore, been the practice of the Customs Service to consult
the terms of the EN when interpreting the HTSUS.
In November 1994, the 14th Session of the Harmonized System
Committee decided to amend the ENs to headings 27.14 and 27.15.
The changes, effective February 1, 1995, are reported in Annex
L/7 to document 38.960, as follows:
CHAPTER 27.
Page 222. Heading 27.14.
1. Third paragraph. New second and third sentences.
Insert the following new second and third sentences :
"The mere addition of water to natural bitumen does not
change the classification of the product for the
purposes of heading 27.14. Further, the heading also
includes dehydrated and pulverized natural bitumen
dispersed in water and containing a small amount of an
emulsifier (surfactant), added solely to facilitate
safety, handling or transport."
2. Fifth paragraph. Exclusions.
Insert the following new exclusion (e) :
"(e)Bituminous mixtures based on natural bitumen with
added substances, other than water and emulsifiers
(surfactants) necessary solely to facilitate safety,
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handling or transport (heading 27.15)."
Reletter present exclusion "(e)" as "(f)".
Page 223. Heading 27.15. Third paragraph. Exclusions.
Insert the following new exclusion (d) :
"(d) Dehydrated and pulverized natural bitumen dispersed in
water and containing a small amount of an emulsifier
(surfactant), added solely to facilitate safety,
handling or transport heading 27.14)."
Reletter present exclusions "(d)" and "(e)" as "(e)" and "(f)", respectively.
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The United States supported the amendments to the EN and the
amendments make it clear that natural bitumen with the mere
addition of water and the addition of a small amount of
emulsifier (surfactant) to facilitate safety in transportation is
not a manufactured product so as to preclude classification in
heading 2714. Accordingly, the product, known as "Orimulsion"
described above, is classified as other bitumen, natural, in
subheading 2714.90.00, HTSUS.
HOLDING:
The product known as "Orimulsion" containing 70 percent
natural bitumen, with the addition of 30 percent water, and less
than 1 percent of a surfactant for safety in transportation
purposes and used as a boiler fuel, is classified in subheading
2714.90.00, HTSUS, with a general free rate of duty.
NYRL 857187, dated November 15, 1990, is revoked.
In accordance with 19 U.S.C. 1625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C. 1625
does not constitute a change of practice or position in
accordance with section 177.10(c)(1), of the Customs Regulations
(19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division