CLA-2 OT:RR:CTF:TCM H218236 TNA
Mr. Andrew Gerard
Aries Global Logistics, Inc.
Airport Industrial Park
145 Hook Creek Blvd., Bldg. A-3A
Valley Stream, NY 11581
RE: Revocation of NY N016133; Classification of a Brick Type Plate Used in Ballistic Jackets from Italy
Dear Mr. Gerard:
This letter is in reference to New York Ruling (“NY”) N016133, issued to you on December 20, 2007, on behalf of First Choice Armor & Equipment, Inc., concerning the tariff classification a brick type plate used in ballistic jackets from Italy. There, U.S. Customs and Border Protection (“CBP”) classified the subject plate under subheading 6903.20.00, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Other refractory ceramic goods… Containing by weight more than 50 percent of alumina (Al2O3) or of a mixture or compound of alumina and of silica (SiO2).” We have reviewed NY N016133 and found it to be incorrect. For the reasons set forth below, we hereby revoke NY N016133.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N016133 was published in the Customs Bulletin, Vol. 47, No. 52, on January 2, 2014. No comments were received in response to this notice.
FACTS:
The subject merchandise consists of a brick-type ceramic plate. It is 98% alumina and 2% other components. It is designed for incorporation into ballistic jackets that are worn for protection against firearms and other weapons. As such, it is designed to be worn on the person during use by military, police, and similar personnel.
Before issuing NY N016133, CBP’s National Commodity Specialist division (“NCSD”) sent a sample of the subject merchandise to a CBP laboratory for analysis. The resulting laboratory report, Laboratory Report # NY 20071421, dated December 18, 2007, concluded that the subject merchandise was composed essentially of aluminum oxide. The laboratory also noted that the subject merchandise conformed to the definition of a “refractory article” found in Additional U.S. Note 1 to chapter 69, HTSUS. Finally, the laboratory noted that the average hardness of the merchandise is approximately 8.1 on the Mohs Scale.
ISSUE:
Whether the subject brick type plate is classified as a refractory article of heading 6903, HTSUS, or as a ceramic ware of heading 6209, HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The HTSUS provisions under consideration are as follows:
6903 Other refractory ceramic goods (for example, retorts, crucibles, muffles, nozzles, plugs, supports, cupels, tubes, pipes, sheaths and rods), other than those of siliceous fossil meals or of similar siliceous earths:
6909 Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods:
6914 Other ceramic articles:
Additional U.S. Note 1 to chapter 69, HTSUS, states, in pertinent part, the following:
For the purposes of headings 6902 and 6903, the term “refractory” is applied to articles which have a pyrometric cone equivalent of at least 1500EC when heated at 60EC 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General ENs to Sub-Chapter I of Chapter 69, HTSUS, provides, in pertinent part, the following:
This sub-Chapter covers, whether or not they contain clay:…
(B) In headings 69.02 and 69.03 refractory goods, i.e., fired articles having the special property of resisting high temperatures as met in metallurgy, the glass industry, etc. (e.g., of the order of 1,500 °C and higher). According to the particular uses for which they are intended, refractory articles may also need to withstand rapid changes of temperature, be either good thermal insulators or conductors, have a low coefficient of thermal expansion, be porous or dense, resist the corrosive effects of products with which they come into contact, have a good mechanical strength and resistance to wear, etc.
However, to fall in heading 69.02 or 69.03 as refractory goods, articles must not only be capable of resisting high temperatures, they must also be designed for high temperature work. Heading 69.03 would therefore include crucibles of sintered alumina, but textile machine thread guides of the same material would fall in heading 69.09 since they are designed for clearly non-refractory uses.
The main types of refractory goods are:
(1) High alumina refractories based either upon bauxite, mullite or corundum (sometimes mixed with clays) or on kyanite, sillimanite or andalusite (aluminium silicates) mixed with clays, or on sintered alumina….
Refractory materials are used mainly to line blast furnaces, coke ovens, petroleum cracking plants, glass, ceramic and other industrial furnaces, and in the manufacture of pots, crucibles and other plant for the chemical, glass, cement and aluminium and other metallurgical industries.
But headings 69.02 and 69.03 do not cover articles which, though sometimes described as refractory or semi-refractory, are incapable of withstanding industrial temperatures of the type described above. Such articles fall in the appropriate heading of sub-Chapter II.
The EN to heading 6903, HTSUS, states, in pertinent part, the following:
This heading covers all refractory goods not specified or included in the preceding headings.
These articles include:
Articles which, unlike the refractory products of heading 69.02, are in many cases not permanent fixtures, such as retorts, reaction vessels, crucibles, cupels and similar articles for industrial or laboratory use, muffles, nozzles, plugs, burner jets and similar parts of furnaces; saggars, stands and other kiln furniture to support or separate pottery during firing; sheaths and rods; stands for crucibles; ingot moulds; etc.
The EN to heading 6909, HTSUS, states, in pertinent part, the following:
This heading covers a range of very varied articles usually made from vitrified ceramics (stoneware, porcelain or china, steatite ceramics, etc.), glazed or unglazed. It does not, however, cover refractory goods of a kind designed for resisting high temperatures as described in the General Explanatory Note to sub-Chapter I. But articles of a type not designed for high temperature work remain in this heading even if made of refractory materials (e.g., thread guides, grinding apparatus, etc., of sintered alumina).
The heading covers in particular:
Laboratory wares (e.g., for research or industrial use) such as crucibles and crucible lids, evaporating dishes, combustion boats, cupels; mortars and pestles; spoons for acids, spatulas; supports for filters and catalysts; filter plates, tubes, candles, cones, funnels, etc.; water-baths; beakers, graduated vessels (other than graduated kitchen measures); laboratory dishes, mercury troughs; small tubes (e.g., combustion tubes, including analysis tubes for estimation of carbon, sulphur, etc.).
Ceramic wares for other technical uses, such as pumps, valves; retorts, vats, chemical baths and other static containers with single or double walls (e.g., for electroplating, acid storage); taps for acids; coils, fractionating or distillation coils and columns, Raschig rings for petroleum fractionating apparatus; grinding apparatus and balls, etc., for grinding mills; thread guides for textile machinery and dies for extruding man-made textiles; plates, sticks, tips and the like, for tools.
The EN to heading 6914, HTSUS, states, in pertinent part, the following:
This heading covers all ceramic articles not covered by other headings of this Chapter or in other Chapters of the Nomenclature.
In NY N016133, CBP classified the subject merchandise in heading 6903, HTSUS, which provides for “Other refractory ceramic goods (for example, retorts, crucibles, muffles, nozzles, plugs, supports, cupels, tubes, pipes, sheaths and rods), other than those of siliceous fossil meals or of similar siliceous earths.” Refractory goods of this heading are fired articles that can resist high temperatures of the order of 1,500 °C and higher. See Additional U.S. Note 1 to Chapter 69; see also General EN to Chapter 69, HTSUS. Furthermore, in order to be classified as a refractory good of heading 6903, HTSUS, merchandise must not only be capable of resisting high temperatures, they must also be of a type designed for high temperature work. See General EN to Chapter 69, HTSUS.
Reading these definitions together, CBP has long held that classification as a refractory article of heading 6903, HTSUS, requires more than simply meeting the definition in Additional U.S. Note 1 to Chapter 69, HTSUS, and simply being capable of resisting temperatures of 1500 degrees Celsius and higher. Thus, we have reasoned that merchandise of a type not regularly subjected to temperatures of 1,500 degrees Celsius and higher is not designed for high temperature use, even if the merchandise is capable of withstanding that amount of heat. For example, in HQ 082956, dated December 8, 1989, CBP classified ceramic needle guides for use with a computer printer outside heading 6903, HTSUS, because, while they were “capable of withstanding temperatures of 1500 degrees centigrade, they will not be subjected to those temperatures in a computer printer.” See HQ 082956. Nor are needle guides the type of merchandise regularly subjected to 1500 degrees Celsius. This principle has been followed in subsequent CBP rulings. See HQ 089409, dated June 7, 1991; NY G83258, dated November 2, 2000.
Similarly, in the present case, the subject ballistic plates are used in jackets that are worn on the person. While it is not in dispute that the subject plates are capable of withstanding temperatures of 1500 degrees centigrade or higher, they are not the type of article that will be subject to anywhere near these temperatures in everyday use. To the contrary, they will be used in training and in combat, activities conducted in and generating far lower temperatures than 1500 degrees Celsius. As a result, the subject plates do not meet the terms of heading 6903, HTSUS, and we examine alternate headings.
Heading 6909, HTSUS, provides for “Ceramic wares for laboratory, chemical or other technical uses....” Here, the focus is on what constitutes a “technical use.” In Apex Universal v. United States, 22 C.I.T. 465, the court classified ceramic paving markers. Apex Universal v. United States, 22 C.I.T. 465, 466-467. In considering classification in heading 6909, HTSUS, the court defined “technical” as “designed or used to facilitate any special mechanical or scientific process.” Id. at 471. This definition is in accordance with the ENs, which list items whose unifying characteristics are both a ceramic composition and “utility as an instrument or container to facilitate a ‘technical’ process, whether it be a chemical experiment in a laboratory or storage and conveyance of an agricultural product.” See EN 69.09; Apex Universal, 22 C.I.T. at 471.
In the present case, the subject ceramic plate is designed for incorporation into ballistic vests so that it can stop bullets. This is a function that is separate from any special technical or scientific process. Thus, this ceramic plate cannot be said to be designed or used to facilitate any special mechanical or scientific process. As such, it cannot be classified in heading 6909, HTSUS, as a ceramic ware for laboratory, chemical or other technical use.
Heading 6914, HTSUS, provides for “Other ceramic articles.” The heading covers all ceramic articles not covered by other headings of Chapter 69 or other chapters of the nomenclature. See EN 69.14. CBP has classified a wide range of articles in this heading, from a ceramic setter which was used to maintain the shape of fine china dinnerware through the firing process, to plastic box with a ceramic magnet attached to the bottom. See, e.g., HQ 960294, dated August 12, 1997 (classifying the ceramic setter in heading 6914, HTSUS); HQ 089760, dated February 24, 1992 (classifying the plastic box with a ceramic magnet attached to the bottom in heading 6914, HTSUS); HQ 960922, dated August 3, 1998 (classifying ceramic adapters and receptacles used in the transmission of signals through optical fibers in heading 6914, HTSUS).
In the present case, the subject merchandise is made of ceramic and has been precluded from classification in various other headings of the nomenclature pursuant to the analysis above. It also comports with the broad range of merchandise that CBP has classified in heading 6914, HTSUS. As such, it is described by the terms of heading 6914, HTSUS, and will be classified there.
HOLDING:
Under the authority of GRI 1, the subject brick type plate is classified in heading 6914, HTSUS. It is specifically provided for in subheading 6914.90.80, HTSUS, which provides for “Other ceramic articles: Other: Other.” The applicable duty rate is 5.6%.
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 internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N016133, dated December 20, 2007, is REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division