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HQ 962691




June 15, 2000

CLA-2 RR:CR:GC 962691ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.99.4000

Port Director
U.S. Customs Service
6269 Ace Industrial Drive
Cudahy, WI 53110

RE: Protest 3701-98-100044; Asbestos-free gasket material, AFM 20 and AFM 22.

Dear Port Director:

The following is our decision on Protest 3701-98-100044, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of asbestos-free gasket material.

FACTS:

The merchandise under protest is composed of asbestos-free, compressed facing sheets which have been bonded onto both sides of a thin, perforated galvanized steel core. The merchandise has been designated AFM 20 and AFM 22 by the manufacturer, “AFM” standing for “asbestos-free Material.” The merchandise is imported in rolls which are then cut to shape for use as gaskets in applications where sealability and compressibility are needed. According to figures supplied by protestant, the asbestos-free facing sheets which are made from a proprietary mixture of clay, slate flour, stone, black iron oxide, sulfur and other ingredients comprise 53.90% of the weight of the product.

The consumption entries covering the imported merchandise were liquidated between August 28, 1998, and November 20, 1998, under the provision for other articles of iron or steel in subheading 7326.90.8585, HTSUS, with duty at the 1998 general rate of 3.5%. A timely protest under 19 U.S.C. 1514 was received on November 24, 1998. The protestant has requested reliquidation of the entry under the provision for articles of stone or other mineral substances in subheading 6815.99.4000, HTSUS, with duty at the 1998 general rate of 0.9%.

In preparing this ruling, we have considered the samples and materials protestant and counsel have submitted as well as information presented during a meeting in our office on December 13, 1999, and the supplemental submission of February 11, 2000.

ISSUE:

What is the classification of rolls of non-asbestos gasket material?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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. 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 may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS subheadings under consideration are as follows:

6815 Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included:

Other articles:

6815.99 Other:

6815.99.4000 Other.

7326 Other articles of iron or steel (con.):

7326.90 Other:

Other:

7326.90.85 Other:

7326.90.8585 Other.

The merchandise under protest, rolls of asbestos-free gasket material (or AFM), is composed of two layers of asbestos-free compressed facing sheets with a thin layer of perforated galvanized steel between them. The asbestos-free sheets are formulated from a proprietary combination of ingredients which includes latex, clay, slate flour, heavy stone, aramid fiber, black iron oxide, sulfur, and other elements to duplicate, as closely as possible, the performance characteristics of asbestos. Because the AFM are goods consisting partly of asbestos-free sheets and partly of steel, for tariff purposes, they constitute goods consisting of two or more materials and substances. Thus, they may not be classified solely on the basis of GRI 1. The AFM are described in GRI 2(b) which covers mixtures and combinations of materials and substances and goods consisting of two or more materials and substances. According to GRI 2(b), “The classification of goods consisting or more than one material or substance shall be according to the principles of Rule 3.” Because the ingredients of the AFM present us with a composite good for classification purposes, we turn to GRI 3(b) which governs the classification of mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale. Under GRI 3(b), classification of an article is to be determined on the basis of the component which gives the article its essential character. The EN’s provide that, if this rule applies, goods shall be classified as if they consisted of the material or component which gives them their essential character. EN Rule 3(b)(VIII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods.

Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable.

Before we can determine the essential character of the AFM, we must first determine the classification of the constituent components of the AFM. The perforated steel component can be classified by GRI 1 in heading 7326, HTSUS, as other articles of iron or steel. The asbestos-free sheets which cover the steel are themselves composite goods. The predominant component(s) by weight of the asbestos-free sheets, giving them their essential character as articles of stone or other mineral substances, are the inorganic fillers (clay, slate and stone) which comprise over 41% of the total weight of the finished product. Accordingly, the asbestos-free sheets have the essential character of mineral substances and are classified in heading 6815, HTSUS, as other mineral substances, not elsewhere specified or included.

The AFM being classified is being imported to be used as material for gaskets. One of the key elements of a gasket is its ability to form a seal when it is put under pressure. While the steel component provides stability and rigidity to the AFM, it does not allow formation of a tight seal. In contrast, the asbestos-free sheets are compressible and do enhance the AFM’s ability to create and maintain a seal. Further, the asbestos-free sheets account for 53.9% of the overall weight of the AFM.

In this case, the "indispensable function" (Better Home Plastics, supra) of the AFM is that it is to be used as a gasket. The asbestos-free sheets are the component that distinguishes this product from other products. It is the asbestos-free sheets rather than the steel core which provide the gasket material its essential compressibility. This criterion indicates that the essential character of the good is provided by the asbestos-free sheet component. Insofar as the other factors (quantity, bulk, and weight) are concerned, the weight aspect of the asbestos-free sheets relative to the weight of the other components, appears to support the position that the asbestos-free sheet component provides the essential character of the article. We conclude that the essential character of the product is provided by the asbestos-free sheets component so that, under GRI 3(b), the AFM are classifiable in heading 6815, HTSUS.

HOLDING:

The asbestos-free gasket material identified as AFM 20 and AFM 22 are classified in subheading 6815.99.4000, HTSUS, which provides for: [a]rticles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: other articles: other: other.

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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