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HQ 966468





November 20, 2003

CLA-2 RR:CR:GC 966468 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3816.00.00

Area Port Director
U.S. Customs and Border Protection
198 West Service Road
Champlain, NY. 12919

RE: Magfill® and Jetmag®; Internal Advice (03/006)

Dear Port Director:

The following is our decision regarding your memorandum dated April 3, 2003, forwarding Internal Advice (03/006), which was initiated by letter dated March 25, 2003, by Livingston International Trade Services, Inc., on behalf of Les Sables Olimag Inc., and seeks classification of Magfill® and Jetmag® sands, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Customs Laboratory Report CH20021141, dated November 6, 2002, states, in pertinent part, the following:

The sample, Magfill®, is composed of magnesium silicates with smaller amounts of oxides of iron, aluminum and calcium. It has a pyrometric cone equivalent (PCE) of 16-17 (deformation temperature 1455-1477 degree centigrade) when tested at the heating rate of 60 degrees centigrade per hour. The PCE test was performed by Orton Refractories and Research Center, Ohio.

Customs Laboratory Report SF20030919, dated August 29, 2003, analyzing a sample of Magfill®, states, in pertinent part, the following:

This sample consists of three (3) bags of granular material, each of a uniform particle size. Analysis of the material from one of the bags found that it meets the thermal (refractory) test conditions of Additional U.S. Note 2 to HTSUS Chapter 69. It consists, essentially, of a mixture of the two minerals, forsterite and enstatite.

According to technical literature, it is produced by calcining serpentine-containing asbestos tailings with a small amount of magnesium oxide. The manufacturer claims that it is used in refractory applications.

Customs Laboratory Report SF20030919, dated August 29, 2003, analyzing a sample of Jetmag®, states, in pertinent part, the following:

This sample consists of two (2) bags of granular material, each of a uniform particle size. Analysis of the material from one of the bags found that it meets the thermal (refractory) test conditions of Additional U.S. Note 2 to HTSUS Chapter 69. It consists, essentially, of a mixture of the two minerals, forsterite and enstatite.

According to technical literature, it is produced by calcining serpentine-containing asbestos tailings with a small amount of magnesium oxide. The importer claims that it is used for sand blasting (surface cleaning) applications.

ISSUE:

Are refractory sands, that are not concretes, mortars or cements, classified in heading 3816, HTSUS?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS headings under consideration are as follows:

3816.00.00: Refractory cements, mortars, concretes and similar compostions, other than products of heading 3801

3824: Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:

Other:

Other:

Mixtures of two or more inorganic compounds:

Other

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

Other articles:

Other:

6815.99.40 Other

EN 38.16 states, in pertinent part, the following:

This heading covers certain preparations (e.g., for furnace linings) with a basis of such refractory materials as chamotte and dinas earths, crushed or ground corundum, powdered quartzites, chalk, calcined dolomite, with an added binder (for example, sodium silicate, magnesium or zinc fluosilicates).

The heading also covers refractory compositions with a basis of silica for the manufacture of dental or jewelry moulds by the lost wax process.

The heading further covers refractory concretes consisting of mixtures of heat-resistant hydraulic cements (e.g., aluminous cements) and refractory aggregates, used for the foundation of furnaces, coke ovens, etc., or for patching furnace linings as well as the following:

(a) Compositions known as refractory “plastics”, which are products sold as a dampened mass often consisting of a refractory aggregate, clay and minor additives.

(b) Ramming mixes, which are similar in composition to the products mentioned in (a) above and which, when applied by hand-held pneumatic rammers, form a dense coating or filling.

(c) Gunning mixes, which are refractory aggregates mixed with hydraulic setting or other binders, applied to furnace linings, sometimes even when these are hot, by special guns which project the mix through a nozzle using compressed air.

As a primary matter, if the merchandise can be classified by the terms of heading 3816, HTSUS, it cannot be classified in heading 3824 or in heading 6815, HTSUS, because it is “elsewhere specified or included.” To be classified in heading 6815, the merchandise must be refractory, and it must be either a mortar, cement, concrete or a similar composition other than a product of heading 3801, HTSUS. There is no credible claim that the instant olivine sand is a mortar, cement, or concrete. Therefore, the issue is whether the olivine sands are refractory and whether they are of a similar composition to mortar, cement, or concrete.

Tariff terms are required to be interpreted consistently where they appear throughout the tariff schedule. 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.

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.

Two different Customs laboratories have tested Magfill® and have each obtained different results as to whether the product is a refractory substance. Only one of the Customs laboratories tested Jetmag® and found that this substance is refractory. However, even if the products are both refractory, they must still be of similar composition to either mortar, cement, or concrete. If the products can not meet these terms in the heading, it is not necessary to resolve these apparently conflicting laboratory reports in order to properly classify this merchandise.

"Mortars are generally mixed by volume, using one part cement paste and three part sand aggregate...." The New Encyclopedia Britannica, Macropodia (1975), vol. 11, 588. Concrete is "a construction material composed of portland cement and water combined with sand, gravel, crushed stone, or other inert material." Materials Handbook, 11th Ed. (1977, 208-209). The instant merchandise consists of a granular mineral like sand. Although such a material is similar to the sand component of mortar and concrete, the composition of the instant products is not like the composition of mortar or concrete. The instant products do not contain any cement or binder. Furthermore, unlike all the products listed in the ENs as examples of products "of similar composition," the instant products are not applied wet or as a paste, and do not "set" like cement, mortar, concrete, refractory plastics, gunning or ramming mixes. Accordingly, Magfill® and Jetmag® are not classified in heading 3816, HTSUS, as products of "similar composition" to mortar, cement or concrete.

As between headings 3824 and 6815, HTSUS, the issue is whether or not the instant merchandise is of synthetic chemical composition or of natural mineral composition. According to product literature, Magfill® and Jetmag® are referred to as synthetic olivine sands. Customs Laboratory found them to be of identical chemical composition. The patent explains a manufacturing process beginning with asbestos tailings. Although created from natural minerals, the byproducts of asbestos manufacture subsequently processed are a synthetic chemical mixture because the processing has created a new product distinctive from the original minerals.

Hence, the proper classification of these synthetic granular mixtures of inorganic substances is subheading 3824.90.39, HTSUS, the provision for "prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: other: other: mixtures of two or more inorganic compounds: other."

HOLDING:

Magfill® and Jetmag® refractory sands are classified in subheading 3824.90.39, HTSUS, the provision for "prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: other: other: mixtures of two or more inorganic compounds: other."

You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date 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.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.

Sincerely,

Myles B. Harmon, Director

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