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HQ 960969




June 15, 1998

CLA-2 RR:CR:GC 960969 RTR

CATEGORY: CLASSIFICATION
TARIFF NO.: 2818.10.20
Port Director of Customs
150 North Royal Street, Suite 3004
Mobile, Alabama 36602

RE: Protest 1901-97-100014; brown fused alumina

Dear Port Director:

This is our decision on Protest 1901-97-100014 filed against your classification of brown fused alumina, under the Harmonized Tariff Schedule of the United States (HTSUS). The entries under protest ware liquidated on October 25, 1996, and this protest timely filed on January 23, 1997.

FACTS:

The protestant contends that brown fused alumina (BFA), is a naturally occurring bauxite fused in an arc furnace, and that the mixed mineral bauxite, from which its BFA is derived, is a hydrated aluminum oxide. The merchandise is mainly used as an abrasive. The merchandise was entered under a provision for "artificial corundum," in subheading 2818.10.20, HTSUS.

ISSUE:

Whether brown fused alumina is classifiable as "artificial corundum," of subheading 2818.10.20, HTSUS, or as "aluminum oxide," of subheading 2818.20.00, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The provisions under consideration are as follows:

2818 Artificial corundum, whether or not chemically defined; aluminum oxide; aluminum hydroxide:

2818.10 Artificial corundum, whether or not chemically defined:

2818.10.20 In grains, or ground, pulverized or refined

2818.20.00 Aluminum oxide, other than artificial corundum

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

In a letter to Customs, dated November 16, 1996, protestant claimed that the merchandise is classifiable as "aluminum oxide," in subheading 2818.20.00, HTSUS.

Aluminum oxide can be (naturally or by synthesis) obtained in different crystalline forms. Natural corundum is defined as the alpha form, and is classified in subheading 2513.20, HTSUS. Artificial corundum is provided for in subheading 2818.10, HTSUS. When aluminum hydroxides or oxides (not the alpha form) are heated, they undergo a series of compositional and structural changes. If they are heated enough, these other forms will be converted to the alpha form. (See Encyclopedia of Chemical Technology, Vol. 2, 3d Ed, at 302). Therefore, heading 281 8.10 covers products that are chiefly composed of the alpha form of aluminum oxide, produced by chemical/physical manufacturing processes or treatments. Heading

2818.10, HTSUS, excludes naturally occurring products. Additionally, the ENs to 28.18 state that:

(A) Artificial corundum is formed by fusing aluminum oxide in an electric furnace. The aluminum oxide may contain small proportions of other oxides (e.g., titanium oxide, chromium oxide) either deriving from the natural starting material (bauxites) or added to improve, for example, the hardness of the fused grain or to modify the colour. However, mechanical mixtures of artificial corundum and other substances, such as zirconium dioxide, are excluded (heading 38.24). (Italics added)

Artificial corundum is put up in small pieces or masses, crushed or in grains; it is more resistant than ordinary aluminum oxide to the action of air and acids, and is very hard. It is used, e.g., as an abrasive, in the manufacture of refractory conglomerates (such as mullite and sillimanite, mixtures of corundum with pure refractory clay and with anhydrous aluminum silicates, respectively) or of laboratory utensils and in the electrical industry. (Italics added)

Manufacturing Process

Exhibit One to protestant's letter of March 29, 1995, a "Mountain Brand" specification sheet for BFA, describes the manufacturing process of BFA as follows: "Mountain Brand A-type alumina is made from high-quality bauxite by fusing in a pouring electric arc furnace at a high temperature above 2,000 degrees C. Crushed and dressed with an aero-fall mill and followed by magnetic-separating and screening, the crystallized ingot becomes grains of dense structure, great hardness, good self-sharpening and excellent grinding properties. And the grains are in blocky shape. A-type brown fused alumina is suitable for manufacturing vitrified and resinoid tools, and for lapping, polishing and blasting. It may also be used as superior refractories."

According to the specification sheet, the merchandise is "alpha-type" aluminum oxide made from high-quality bauxite by fusing in a pouring electric arc furnace at a high temperature above 2,000 degrees C, and is put up in crushed form. Thus, the description of the manufacturing process for BFA comports with the ENs' description of the manufacturing process for production of artificial corundum.

Chemical Composition

The protestant claims that a significant difference between artificial corundum and BFA is that the former is produced at a much higher temperature (2,000 degrees C) than the latter. The protestant claims that the merchandise is not artificial corundum because it has been fired at only 1,700 degrees C. However, we note that the Mountain Brand specification sheet clearly states that the merchandise has been fired at a temperature over 2,000 degrees C. Therefore, protestant's specification sheet contradicts its position.

When we compare BFA specifications with those for alpha form aluminum oxide described in the technical references, we note the following: (1) the Mountain Brand specification sheet indicates that the product is in the alpha form; (2) BFA, with a density of 3.97 g/cm3 has virtually the same density as the alpha form (Ibid, 305); (3) the melting point for BFA (2,000 degrees C) is remarkably close to that of the alpha form (approximately 2,053 degrees C (Ibid, 303)); and (4) the manufacturing process for BFA and the alpha form are similar, if not identical. For these reasons, we strongly believe that these facts support the position that the merchandise is artificial corundum.

The merchandise meets Customs definition for artificial (not crude) corundum of heading 2818, HTSUS.

HOLDING:

Under the authority of GRI 1, BFA is classified in subheading 2818.10.20, HTSUS.

This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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 to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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