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HQ 956145




July 29, 1994

CLA-2 CO:R:C:M 956145 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.99.40

District Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230
Attn: Protest Reviewer

RE: Protest 3004-94-100041; Clayburn Bedding Mix; 3816.00.00; refractory; Additional U.S. Note 2, Chapter 69; HRL 956708 reconsidered NY 886711; Calcined Fireclay P

Dear District Director:

This pertains to Protest 3004-94-100041, concerning the tariff classification of Clayburn Bedding Mix under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The protestant describes the Clayburn Bedding Mix as being composed of 60% to 65% Silica and 22% to 28% Alumina. The protestant states that it is formulated specifically for aluminum electrolytic cells as a bedding layer under carbon cathodes and has the special property of resisting the penetration of cryolitic bath coming through the carbon cathode blocks by reacting with the components of the cryolitic bath and sintering quickly to form a sealing layer at a service temperature of around 900 degrees Celsius.

Upon importation, the entry of the Clayburn Bedding Mix was liquidated on December 10, 1993, under subheading 6815.99.40, HTSUS, as other articles of stone or of other mineral substances, not elsewhere specified or included. This classification is based on Customs Laboratory Reports No. 8-93-20383-001 and No. 8-93-20381-001 dated March 5, 1993, both of which examined Clayburn Bedding Mix and found that:

The sample, a reddish-brown powder, is composed largely of earthy or mineral compounds of silicon, aluminum magnesium, calcium and iron. It does not have the characteristics of a portland-cement type preparation; it will not "set" as a mortar, either under water, in air, or when fired. It is not refractory; it melts when tested as prescribed in Chapter 69, U.S. Note 2, HTSUS.

In a protest timely filed on February 23, 1994, the protestant contends that the Clayburn Bedding Mix is properly classified under subheading 3816.00.00, HTSUS, as refractory cements, mortars, concretes and similar compositions. As evidence of classification under subheading 3816.00.00, HTSUS, the protestant submitted New York Ruling (NY) 886711 dated September 28, 1993, which classified its "Calcined Fireclay P" under subheading 3816.00.00, HTSUS. The protestant states that Calcined Fireclay P and Clayburn Bedding Mix are the same product; the name was changed for marketing purposes only.

The competing subheadings are as follows:

3816.00.00 Refractory cements, mortars, concretes and similar compositions, other than products of heading 3801....

6815.99.40 Articles of stone or of other mineral substances (including articles of peat), not elsewhere specified or included...Other articles...Other...Other.

ISSUE:

Is the Clayburn Bedding Mix classified under subheading 3816.00.00, HTSUS, as refractory cements, mortars, concretes and similar compositions?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

Subheading 3816.00.00, HTSUS, provides for "Refractory cements, mortars, concretes and similar compositions, other than products of heading 3801...." The term "refractory" is not defined in Chapter 38 or Section VI, HTSUS. However, Additional U.S. Note 2, Chapter 69, HTSUS, states that:

..."refractory" is applied to articles which have a pyrometric cone equivalent of at least 1500 degrees Celsius when heated at 60 degrees Celsius 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.

Tariff terms are required to be interpreted consistently where they appear throughout the tariff schedule. Therefore, since the term "refractory" is not defined in Chapter 38 or Section VI, HTSUS, we feel that turning to Chapter 69, HTSUS, for a definition of "refractory" is proper.

The Office of Laboratories and Scientific Services issued a memorandum to all Laboratory Directors on July 26, 1993, detailing a standard testing procedure for refractory mortars. The Office of Laboratories and Scientific Services thoroughly reviewed the different testing methods and requirements of refractory mortars, as well as the various technological definitions of refractory, and determined that refractory mortars are tested and classified by the American Society of Testing Materials (ASTM) using different methods and requirements. Therefore, in the interest of interpreting the tariff terms consistently, the Office of Laboratories and Scientific Services determined that the definition of "refractory" in Additional U.S. Note 2, Chapter 69, HTSUS, was an acceptable definition for the term "refractory mortars" of heading 3816, HTSUS.

Since the laboratory reports found that the Clayburn Bedding Mix did not meet the definition of "refractory" in Additional U.S. Note 2, Chapter 69, HTSUS, it is not classifiable under subheading 3816.00.00, HTSUS.

The protestant contends that the Clayburn Bedding Mix should be classified under subheading 3816.00.00, HTSUS, pursuant to NY 886711 because the Clayburn Bedding Mix is the same product as the Calcined Fireclay P in NY 886711. The protestant states Calcined Fireclay P was renamed to Clayburn Bedding Mix for marketing purposes. However, the information provided by the protestant indicates that the Clayburn Bedding Mix and Calcined Fireclay P are not the exact same product. The Calcined Fireclay P is composed of 60% to 65% Silica, 28% to 33% Alumina, and 2% to 2.5% Iron, whereas the Clayburn Bedding Mix is composed of 60% to 65% Silica and 22% to 28% Alumina. Therefore, NY 886711 is inapplicable to the Clayburn Bedding Mix under consideration. Moreover, the classification of Calcined Fireclay P under subheading 3816.00.00, HTSUS, in NY 886711 is presently being reconsidered in Headquarters Ruling Letter (HRL) 956708.

HOLDING:

The Clayburn Bedding Mix is classified under subheading 6815.99.40, HTSUS, as other articles of stone or of other mineral substances, not elsewhere specified or included.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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