OT:RR:CTF:CPMM:LMH
BakerStone
Attn: Tim Case
3617 W. MacArthur Blvd, Suite 500
Santa Ana, CA 92704
RE: Reconsideration of NY N246316; Classification of a Pizza Oven Box
Dear Mr. Case,
This is in response to your December 11, 2013 request for reconsideration of New York Ruling Letter (NY) N246316, dated October 21, 2013, which pertains to the tariff classification of a Pizza Oven Box under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, the National Commodity Specialist Division (NCSD) determined that the product was classified in subheading 7116.20, HTSUS, which provides, in pertinent part, for “Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed) …” We affirm NY N246316 because U.S. Customs and Border Protection (CBP) Laboratories and Scientific Services Division (LSSD) has confirmed the presence of cordierite, a semiprecious stone, in the Pizza Oven Box.
In its Laboratory Report # HT20162165, dated November 18, 2016, LSSD states, in pertinent part, the following:
Description: The sample consists of tan colored “stone” items contained within an article designated as a “BakerStone Pizza Oven Box”.
Laboratory analysis: X-ray Diffraction Results confirm the presence of cordierite. Aluminum silicate(s) and other inorganic oxides were also identified in the analysis.
Refractory analysis determined the sample does NOT meet the HTSUS requirements of a refractory according to chapter 69, Add’l U.S. Note 1.
“It is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Co. of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398, C.A.D. 1102 (1973) [hereinafter Alcoa]. Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91, 462 F. Supp. 378, 381-82, Cust. Dec. 4772 (1978) (citations omitted). "If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 60 C.C.P.A. at 151, 477 F.2d at 1399. No such evidence that the instant merchandise does not contain synthetic cordierite was included in your request.
Instead you simply claim that the initial description of the inner cooking chamber of the Pizza Oven Box as “cordierite stone”, was in error. You include a chemical analysis of the inner chamber of the Pizza Oven Box and offer a chemical composition for cordierite of (Mg,Fe)2Al4Si5O18 which you claim does not match the composition of the material in the inner chamber. The composition offered coincides with natural cordierite. In fact, there are no known large deposits of natural cordierite. In addition, “it is usual to control purity and reproducibility by utilizing synthetic cordierite.” Synthetic cordierite is made from cordierite powder having a chemical formula of
2MgO-2Al2O3-5SiO2, Chemical Abstracts Service (CAS) No. 1302-88-1. The cooking chamber is made from this material.
Note 1(a) to chapter 71, HTSUS, provides in pertinent part, with exceptions and exclusions noted, that all articles wholly or partly of precious or semiprecious stones (natural, synthetic or reconstructed) are classified in this chapter. The Explanatory Notes’ Annex to heading 7103, HTSUS, the provision for semiprecious stones, lists cordierite as a semiprecious stone. Therefore, the Pizza Oven Box with an internal cooking chamber of synthetic cordierite is properly classified within chapter 71, HTSUS.
In your request you cited two previous NY ruling letters, NY N021167, dated December 28, 2007 (15-inch pizza stone made of cordierite ceramic) and NY N134696 dated December 15, 2010 (13-inch pizza stone made of cordierite ceramic), in which both goods were classified in subheading 6912.00.4810, HTSUSA (Annotated), the heading for “Ceramic tableware, kitchenware… other than of porcelain or china: Tableware and kitchenware… Other, Suitable for food or drink contact.” Note 2(c) to chapter 69, HTSUS, excludes goods of chapter 71. After reviewing your request, it has come to our attention that these previously published rulings need to be reconsidered so that we do not have in force rulings that may be inconsistent with our current views. We intend to initiate a notice and comment procedure pursuant to 19 U.S.C. § 1625(c) to revoke these rulings.
We therefore find that the Pizza Oven Box is an article partly of cordierite classified in subheading 7116.20.4000, HTSUS, which provides, in pertinent part, for “Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Other: Of semiprecious stones (except rock crystal): Other.” We affirm NY N246316. The column one general rate of duty is 10.5% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
Sincerely,
Allyson Mattanah, Chief
Chemicals, Petroleum, Metals, and Miscellaneous Articles Branch