CLA-2 RR:CR:GC 960969 RTR
Port Director of Customs
150 North Royal Street, Suite 3004
Mobile, Alabama 36602
Re: Protest 1901-97-100014; brown fused alumina
Dear Port Director:
This is our decision on Protest 1901-97-100014 filed against
your classification of brown fused alumina, under the Harmonized
Tariff Schedule of the United States (HTSUS). The entries under
protest ware liquidated on October 25, 1996, and this protest
timely filed on January 23, 1997.
FACTS:
The protestant contends that brown fused alumina (BFA), is a
naturally occurring bauxite fused in an arc furnace, and that the
mixed mineral bauxite, from which its BFA is derived, is a
hydrated aluminum oxide. The merchandise is mainly used as an
abrasive. The merchandise was entered under a provision for
"artificial corundum," in subheading 2818.10.20, HTSUS.
ISSUE:
Whether brown fused alumina is classifiable as "artificial
corundum," of subheading 2818.10.20, HTSUS, or as "aluminum
oxide," of subheading 2818.20.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The provisions under consideration are as follows:
2818 Artificial corundum, whether or not chemically defined;
aluminum oxide; aluminum hydroxide:
2818.10 Artificial corundum, whether or not chemically
defined:
2818.10.20 In grains, or ground, pulverized or refined
2818.20.00 Aluminum oxide, other than artificial corundum
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
In a letter to Customs, dated November 16, 1996, protestant
claimed that the merchandise is classifiable as "aluminum oxide,"
in subheading 2818.20.00, HTSUS.
Aluminum oxide can be (naturally or by synthesis) obtained in
different crystalline forms. Natural corundum is defined as the
alpha form, and is classified in subheading 2513.20, HTSUS.
Artificial corundum is provided for in subheading 2818.10, HTSUS.
When aluminum hydroxides or oxides (not the alpha form) are
heated, they undergo a series of compositional and structural
changes. If they are heated enough, these other forms will be
converted to the alpha form. (See Encyclopedia of Chemical
Technology, Vol. 2, 3d Ed, at 302). Therefore, heading 281 8.10
covers products that are chiefly composed of the alpha form of
aluminum oxide, produced by chemical/physical manufacturing
processes or treatments. Heading
2818.10, HTSUS, excludes naturally occurring products.
Additionally, the ENs to 28.18 state that:
(A) Artificial corundum is formed by fusing aluminum oxide
in an electric furnace. The aluminum oxide may contain small
proportions of other oxides (e.g., titanium oxide, chromium
oxide) either deriving from the natural starting material
(bauxites) or added to improve, for example, the hardness of
the fused grain or to modify the colour. However, mechanical
mixtures of artificial corundum and other substances, such
as zirconium dioxide, are excluded (heading 38.24). (Italics
added)
Artificial corundum is put up in small pieces or masses,
crushed or in grains; it is more resistant than ordinary
aluminum oxide to the action of air and acids, and is very
hard. It is used, e.g., as an abrasive, in the manufacture
of refractory conglomerates (such as mullite and
sillimanite, mixtures of corundum with pure refractory clay
and with anhydrous aluminum silicates, respectively) or of
laboratory utensils and in the electrical industry. (Italics
added)
Manufacturing Process
Exhibit One to protestant's letter of March 29, 1995, a
"Mountain Brand" specification sheet for BFA, describes the
manufacturing process of BFA as follows: "Mountain Brand A-type
alumina is made from high-quality bauxite by fusing in a pouring
electric arc furnace at a high temperature above 2,000 degrees C.
Crushed and dressed with an aero-fall mill and followed by
magnetic-separating and screening, the crystallized ingot becomes
grains of dense structure, great hardness, good self-sharpening
and excellent grinding properties. And the grains are in blocky
shape. A-type brown fused alumina is suitable for manufacturing
vitrified and resinoid tools, and for lapping, polishing and
blasting. It may also be used as superior refractories."
According to the specification sheet, the merchandise is
"alpha-type" aluminum oxide made from high-quality bauxite by
fusing in a pouring electric arc furnace at a high temperature
above 2,000 degrees C, and is put up in crushed form. Thus, the
description of the manufacturing process for BFA comports with
the ENs' description of the manufacturing process for production
of artificial corundum.
Chemical Composition
The protestant claims that a significant difference between
artificial corundum and BFA is that the former is produced at a
much higher temperature (2,000 degrees C) than the latter. The
protestant claims that the merchandise is not artificial corundum
because it has been fired at only 1,700 degrees C. However, we
note that the Mountain Brand specification sheet clearly states
that the merchandise has been fired at a temperature over 2,000
degrees C. Therefore, protestant's specification sheet
contradicts its position.
When we compare BFA specifications with those for alpha form
aluminum oxide described in the technical references, we note the
following: (1) the Mountain Brand specification sheet indicates
that the product is in the alpha form; (2) BFA, with a density of
3.97 g/cm3 has virtually the same density as the alpha form
(Ibid, 305); (3) the melting point for BFA (2,000 degrees C) is
remarkably close to that of the alpha form (approximately 2,053
degrees C (Ibid, 303)); and (4) the manufacturing process for BFA
and the alpha form are similar, if not identical. For these
reasons, we strongly believe that these facts support the
position that the merchandise is artificial corundum.
The merchandise meets Customs definition for artificial (not
crude) corundum of heading 2818, HTSUS.
HOLDING:
Under the authority of GRI 1, BFA is classified in subheading
2818.10.20, HTSUS.
This protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing 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 to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division