CLA-2 OT:RR:CTF:TCM H047138 ARM
Mr. Edward Gilbert
Gilbert Holdings, Inc.
46615 Tennis Island Road
Wellesley Island, NY 13640
RE: Revocation of NY L87670; mineral substance boards from China.
Dear Mr. Gilbert:
This is to inform you that Customs & Border Protection (CBP) has reconsidered New York Ruling Letter (NY) L87670, dated February 24, 2006, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of magnesium oxide (MgO) boards from China. The boards were classified as an other mineral article of subheading 6815.99.40, HTSUS. We have determined that NY L87670 is in error. Therefore, this ruling revokes NY L87670.
FACTS:
The instant merchandise consists of boards composed predominately of magnesium oxide and magnesium chloride with plant fiber, talcum powder, glass fiber sheet and perlite used for dry-wall, ceiling, floors, doors and furniture. The merchandise is produced by blending the ingredients in an industrial mixer. The mixture is poured onto a plate with fiberglass mesh and dried in an air-circulating oven. The board is sawn to length and sanded to finished thickness.
In NY L87670, CBP confirmed your description of the composition of samples of two boards of 6mm and 8mm thickness, as consisting of magnesium oxide plus magnesium chloride, plant fiber and other components. Customs Laboratory and Scientific Services Report #NY20051858, dated February 2, 2006, states, in pertinent part, the following:
The bulk of the material is a solid white mass. Plant fibers are embedded throughout the white mass and a cross-woven inorganic mesh material is embedded just below the surface on the top and bottom faces. . . .The white mass appears to be formed from the reaction of magnesium oxide and other materials with water. Based on technical information, once all components are mixed and set, a product is formed which has characteristics different from that of the starting materials. . . . In our opinion, the product is an article of other mineral substances.
On September 30, 2009, CBP Laboratory Report #NY20051858A, amended the conclusion in the previous report to state “in our opinion, the product is an article of magnesium oxychloride cement.”
ISSUE:
Whether boards containing magnesium oxide plus magnesium chloride, plant fiber and other components are classified as articles of cellulose fiber cement, of heading 6811, HTSUS, or as other mineral articles of heading 6815, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The HTSUS subheadings under consideration are as follows:
Articles of asbestos-cement, of cellulose fiber-cement or the like:
Not containing asbestos:
6811.82.00 Other sheets, panels, tiles and similar articles . . .
* * * * *
6815 Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included:
6815.99: Other:
6815.99.40 Other. . . .
The ENs to heading 6811, HTSUS, state, in pertinent part, the following:
This heading covers hardened articles consisting essentially of an intimate mixture of fibres (for example, asbestos, cellulose or other vegetable fibres, synthetic polymer, glass or metallic fibres) and cement or other hydraulic binders, the fibres acting as strengthening agents. These articles may also contain asphalt, tar, etc.
These products are generally manufactured by pressing together thin layers of a mixture of fibres, cement and water or by moulding (possibly under pressure), by pressing or by extruding.
The heading includes sheets of all sizes and thicknesses, obtained as described above, and also articles made by cutting these sheets or by pressing, moulding or bending them before they have set, e.g., roofing, facing or partition sheets and tiles; sheets for making furniture; window sills; sign-plates, letters and numbers; barrier bars; corrugated sheets; reservoirs, troughs, basins, sinks; tubing joints; packing washers and joints; panels imitating carving; ridge tiles, gutters, window frames; flower-pots; ventilation or other tubing, cable conduits; chimney cowls, etc.
All these articles may be coloured in the mass, varnished, printed, enamelled, decorated, drilled, filed, planed, smoothed, polished or otherwise worked; they may also be reinforced with metal, etc.
The ENs to heading 6815, HTSUS, state, in pertinent part, the following:
This heading covers articles of stone or of other mineral substances, not covered by the earlier headings of this Chapter and not included elsewhere in the Nomenclature; it therefore excludes, for example, ceramic products of Chapter 69.
By the terms of the headings and EN 68.15, if the merchandise is described in heading 6811, HTSUS, then it cannot be classified in heading 6815, HTSUS.
The merchandise at issue is formed by combining MgO and MgCl together with plant fiber, talc, glass and perlite. The description and sample of the instant merchandise, as analyzed by CBP Laboratory, is consistent with a magnesium oxychloride cement combined with fiber and shaped into a board. As such, it meets the terms of heading 6811, HTSUS, as illustrated by the EN’s to that heading. Because it meets the terms of heading 6811, HTSUS, the instant merchandise is excluded from classification in heading 6815, HTSUS.
HOLDING:
Pursuant to GRI 1, mineral article board is classified in heading 6811, HTSUS. It is provided for in subheading 6811.82.00, HTSUS, which provides for articles of asbestos-cement, of cellulose fiber-cement or the like: not containing asbestos: other articles. The rate of duty will be free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY L87670, dated February 24, 2006, is revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division