OT:RR:CTF:CPMMA H317151 AJK
Center Director
U.S. Customs and Border Protection
Pharmaceuticals, Health & Chemicals Center for Excellence and Expertise
301 East Ocean Boulevard
Long Beach, CA 90802
Attn: Jing Shan Chen, Import Specialist
RE: Application for Further Review of Protest No. 2809-20-107151; Classification of Aluminum Oxide Hollow Cylinder Rings
Dear Center Director,
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 2809-20-107151, timely filed on October 15, 2020, by C.H. Robinson, on behalf of Unicat Catalyst Technologies, Inc. (Protestant). This Protest and AFR concerns U.S. Customs and Border Protection’s (CBP) classification of aluminum oxide hollow cylinders rings under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protested merchandise consists of aluminum oxide hollow cylinder rings, which are composed of 100 percent pure alumina oxide (CAS No. 1344-28-1). They are manufactured from a mixture of aluminum oxide powder, water, and isopropyl alcohol that is made into a paste and then extruded out in rings that range in size from 3.2 to 8 mm. Thereafter, they are placed in a drying oven at 116 to 121 degrees Celsius (240 to 250 degrees Fahrenheit) for eight hours and then calcined at 427 to 482 degrees Celsius (800 to 900 degrees Fahrenheit) for four to eight hours to cure. They are made for high duration and strength, and they provide surface area for silica trapping if required. As imported, they are inert alumina-based rings used for grading purposes in traditional hydrotreating or filter reactor service. After importation, they will be further manufactured to add Cobalt or Nickel Oxide and Molybdenum Trioxide to allow conversion of sulfur compounds.
The protested merchandise consists of one entry that was entered at the Port of San Francisco on June 10, 2019, and was liquidated on May 1, 2020, under subheading 6903.20.0000, HTSUSA (Annotated), which provides for “other refractory ceramic goods.” In accordance with Section 301 of the Trade Act of 1974, the protested entry was subject to additional duties of 25 percent ad valorem under secondary tariff number 9903.88.03, HTSUS, as the merchandise was classified under subheading 6903.20.00, HTSUS, and had a country of origin of China. See 83 Fed. Reg. 47974 (Sept. 21, 2018).
Protestant filed this Protest and AFR on October 15, 2020, asserting that the aluminum oxide hollow cylinder rings are properly classified under subheading 2818.20.0000, HTSUSA, as “Artifical corundum, whether or not chemically defined; aluminum oxide; aluminum hydroxide: Aluminum oxide, other than artificial corundum.” On March 24, 2021, CBP requested additional information regarding the aluminum oxide hollow cylinder rings. Specifically, we asked for the chemical composition breakdown of the product, the manufacturing process prior to importation, and the manufacturing process after importation. Protestant provided the requested information in follow-up emails, dated April 1, April 8, and April 12, 2021.
ISSUE:
Whether aluminum oxide hollow cylinder rings are classified in heading 2818, HTSUS, as aluminum oxide; heading 3815, HTSUS, as reaction initiators; or heading 6903, HTSUS, as other refractory ceramic goods.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 2809-20-107151 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact that have not previously been ruled upon by CBP or the courts.
The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRIs 2 through 6 may then be applied in order.
The 2019 HTSUS provisions under consideration are as follows:
2818 Artificial corundum, whether or not chemically defined; aluminum oxide; aluminum hydroxide:
2818.20.00 Aluminum oxide, other than artificial corundum
3815 Reaction initiators, reaction accelerators and catalytic preparations, not
elsewhere specified or included:
3815.90 Other:
Consisting wholly of inorganic substances:
3815.90.10 Of bismuth, of tungsten or of vanadium
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:
6903.20.00 Containing by weight more than 50 percent of alumina (Al2O3) or of a mixture or compound of alumina and of silica (SiO2)
* * * *
Note 1 to chapter 28, HTSUS, provides, in pertinent part, as follows:
Except where the context otherwise requires, the headings of this chapter apply only
to:
Separate chemical elements and separate chemically defined compounds, whether or not containing impurities ….
Note 1(a) to chapter 38, HTSUS, provides, in pertinent part, as follows:
This chapter does not cover:
Separate chemically defined elements or compounds with the exceptions of the following:
Artificial graphite (heading 3801);
Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products put up as described in heading 3808;
Products put up as charges for fire-extinguishers or put up in fire-extinguishing grenades (heading 3813);
Certified reference materials specific in note 2 below;
Products specified in note 3(a) or 3(c) below.
Note 1 to chapter 69, HTSUS, provides, in pertinent part:
This Chapter applies only to ceramic products which have been fired after shaping. Headings 6904 to 6914 apply only to such products other than those classifiable in headings 6901 to 6903.
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN to chapter 28, HTSUS, provides, in pertinent part, as follows:
Unless the context otherwise requires, Chapter 28 is limited to separate chemical elements and separate chemically defined compounds.…
EN 28.18 provides, in pertinent part, as follows:
(B) ALUMINIUM OXIDE, OTHER THAN ARTIFICIAL CORUNDUM
Aluminium oxide (anhydrous or calcined alumina) (Al2O3) is obtained by calcining the aluminium hydroxide described below, or from ammonium alum. It is a light white powder, insoluble in water, specific gravity about 3.7.
Uses include, e.g., in aluminium metallurgy, as a filler for paints, in the manufacture of abrasives and synthetic precious or semi precious stones (rubies, sapphires, emeralds, amethysts, aquamarines, etc.), as a dehydrating agent (for drying gases), or as a catalyst (manufacture of acetone and acetic acid, cracking operations, etc.).
EN 38.15 provides, in pertinent part, as follows:
This heading covers preparations which initiate or accelerate certain chemical processes. Products which retard these processes are not included.
These preparations fall broadly into two groups.
Those of the first group are, in general, composed either of one or more active
substances deposited on a support (known as “supported catalysts”) or of mixtures with a basis of active substances. In the majority of cases, these active substances are certain metals, metallic oxides, other metallic compounds or mixtures thereof. The metals most frequently used as such or as compounds are cobalt, nickel, palladium, platinum, molybdenum, chromium, copper or zinc. The support, sometimes activated, generally consists of alumina, carbon, silica gel, siliceous fossil meal or ceramic materials. Examples of “supported catalysts” are supported Ziegler or Ziegler-Natta types.
Those of the second group are mixtures with a basis of compounds whose nature and proportions vary according to the chemical reaction to be catalysed. …
This heading does not include: …
(b) Separate chemically defined compounds (Chapter 28 or 29).…
EN to chapter 69, HTSUS, provides, in pertinent part:
The term “ceramic products” applies to products obtained:
By firing inorganic, non-metallic materials which have been prepared and shaped previously at, in general, room temperature. Raw materials comprise, inter alia, clays, siliceous materials, materials with a high melting point, such as oxides, carbides, nitrides, graphite or other carbon, and in some cases binders such as refractory clays or phosphates.
…
The manufacturing process of the ceramic products referred to in paragraph (A) above (whatever their constituent material) comprises the following main stages:
…
(iv) Firing.
In this operation, the “green ware” is heated to a temperature of 800 °C [1472 °F] or higher according to the nature of the product. After firing, the grains are closely bound together as a result of diffusion, chemical transformation or partial fusion.
Articles heated to temperatures less than 800 °C [1472 °F] for purposes such as curing of resins, accelerating hydration reactions, or for the removal of water or other volatile components, are not considered to be fired for the purposes of Chapter Note 1. Such articles are excluded from Chapter 69.
* * * *
In its Protest, Protestant contends that the subject aluminum oxide hollow cylinder rings are properly classified in heading 2818, HTSUS, as aluminum oxide, and that they are precluded from classification in heading 3815, HTSUS, as reaction initiators, and heading 6903, HTSUS, as other refractory ceramic goods. For the reasons set forth below, we agree.
Heading 2818, HTSUS, is an eo nomine provision that provides for aluminum oxide. Pursuant to note 1(a) to chapter 28, HTSUS, products of chapter 28 must be of pure chemical compounds, with the exception of the allowable additions as provided in the chapter note. Moreover, EN 28.18 provides that aluminum oxide of heading 2818, HTSUS, can be used as a catalyst. In the instant case, the subject merchandise, which is comprised of activated alumina, constitutes a pure chemical compound under the description in note 1(a) to chapter 28, HTSUS, and it is also used for grading purposes in catalytic processes. Under GRI 1, therefore, the aluminum oxide hollow cylinder rings are properly classified in heading 2818, HTSUS, as aluminum oxide.
Note 1(a) to chapter 38 specifically provides that the chapter excludes separate chemically defined elements or compounds of chapter 28, HTSUS, such as aluminum oxide. According to EN 38.l5, heading 3815, HTSUS, covers catalysts that are either composed of one or more active substances deposited on supported catalysts or of mixtures with a basis of active substances, or mixtures with a basis of compounds whose nature and proportions vary according to the chemical reaction to be catalyzed. The subject aluminum oxide hollow cylinder rings, however, are neither mixtures of substances nor active at the time of importation as they are not intended to initiate or accelerate any chemical processes. Accordingly, the subject merchandise is precluded from heading 3815, HTSUS.
Furthermore, the subject aluminum oxide hollow cylinder rings are also precluded from heading 6903, HTSUS, as other refractory ceramic goods. According to the General EN to chapter 69, HTSUS, ceramic goods of chapter 69 must be heated to temperatures of 800 degrees Celsius or more. The subject merchandise, however, is placed in a drying oven at 116 to 121 degrees Celsius (240 to 250 degrees Fahrenheit) for eight hours and then calcined at 427 to 482 degrees Celsius (800 to 900 degrees Fahrenheit) for four to eight hours to cure. Because the subject merchandise is heated at a lower temperature than the requisite degree Celsius, the aluminum oxide hollow cylinders are excluded from heading 6903, HTSUS.
HOLDING:
By application of GRI 1, the aluminum oxide hollow cylinder rings are classified under heading 2818, HTSUS, and, by application of GRI 6, they are specifically classified in subheading 2818.20.00, HTSUS, which provides for: “Artificial corundum, whether or not chemically defined; aluminum oxide; aluminum hydroxide: Aluminum oxide, other than artificial corundum.” The 2019 column one, general rate of duty is free.
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 https://hts.usitc.gov/current.
You are instructed to ALLOW the protest in full. You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division