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HQ 951356


July 24, 1992

CLA-2 CO:R:C:T 951356 JED

CATEGORY: CLASSIFICATION

TARIFF Be.: 6810.99.0000

District Director, Seattle
United States Customs Service c/o Port of Blaine
9901 Pacific Highway
Blaine, Washington 98230

RE: Request for further review of protest 3004-92-100029; Fire retardant laminate

Dear District Director:

The following is our response to the request for further review of Protest No. 3004-92-100029, concerning your decision on the classification of sheets of fire retardant material.

FACTS:

The merchandise involved is fire retardant material in sheet form. The material is produced from the following process. Various chemicals in powder or liquid form are combined to produce a slurry batch mix. The mixture is poured on a work table where a fiberglass mat is laid on top. Then more slurry mix is poured on the fiberglass mat and rolled out to remove air bubbles. This wet sheet is placed under an infrared heater to start a chemical reaction drying process. After curing, the sheet is cut to a size of 48" x 96".

Typical use of the sheet after importation is that it is joined to plywood (or other substrate) and used in the construction of houses as roof or wall sheathing, siding, subflooring, shelving, ceiling, wall paneling, partitions or storage containers. However, our understanding is that the sheets are imported without having been joined to any other material.

The importer entered sheets of fire retardant material at subheading 6811.20.0000, HTSUSA:

6811 Articles of asbestos-cement, of cellulose fiber-cement or the like:

6811.20.0000 Other sheets, panels, tiles and similar articles

Such importation are free of duty.

An examination of the fire retardant material by the Customs Laboratory, Lab No. 8-91-21434-001, revealed the following, "Laboratory analysis indicates that it is fiberglass bound with an inorganic material. It does not contain asbestos or cellulose fibers." Due to the lack of asbestos or cellulose fibers, Customs considered classification in Heading 6811, HTSUSA, inappropriate. Customs placed the fire retardant material in subheading 6815.99.4000, HTSUSA, "Articles of stone or of other mineral substances (including articles of peat), not elsewhere specified or included: ... Other."

ISSUE:

What is the proper classification of the above described fire retardant material under the HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in appropriate order provide a framework for classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The majority of imported goods are classified by application of GRI 1, that is according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. Further, the Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which are the official interpretation of the tariff at the international level, while not legally binding, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

When goods are prima facie classifiable under two or more headings, GRI 3 is applicable. In this case, since the fire retardant material is a mixture of several substances, classification is determined by application of GRI 3(b) which provides that:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note VIII to GRI 3(b) (EN's at pg. 4), states that:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In documents submitted in support of the protest, the importer requested that information concerning the substances and amounts thereof used in producing the fire retardant material remain confidential. However, in a telephone conversation (confirmed by "fax" of July 9, 1992) with William Kolker, President, Pyrotire Coatings of Canada Inc., permission was obtained to state that magnesium oxychloride is present in the material.

The magnesium oxychloride is present in the form of a cement and it is Customs opinion the essential character of the fire retardant sheets is imparted from this cement. It is the cement which accounts for a large portion of the weight of each sheet, which gives rigidity to each sheet, and binds together the remaining substances, including the chemically bound water. The water, release of which is triggered by the high temperature of a fire, acts to retard the spread of that fire.

Having determined the magnesium oxychloride cement imparts essential character, we further find that the subject sheets of fire retardant material are classifiable in subheading 6810.99.0000, HTSUSA. This classification more specifically describes the fire retardant material than Customs original action placing the material in Heading 6815, HTSUSA. Subheading 6810.99.0000, HTSUSA, is as follows:

6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced:

6810.99.0000 Other

HOLDING:

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. A copy of this ruling should be attached to Customs Form 19, Notice of Action, furnished to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division


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