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HQ 967475




May 19, 2006

CLA-2: RR:CTF:TCM: 967475 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6806.10.0090, 6806.90.0090

Port Director
U.S. Customs & Border Protection
330 2nd Avenue South
Suite 560
Minneapolis, MN 55401

RE: Decision on Application for Further Review of Protest No. 3501-04-100039; Classification of a certain 3M Interam mat mount and materials used to manufacture certain models of 3M Interam mat mounts

Dear Port Director:

This is a decision on the Application for Further Review (“AFR”) of Protest Number 3501-04-100039, timely filed with the Bureau of Customs and Border Protection (“CBP”) by 3M Company (“3M” or “protestant”), concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of a certain model of 3M Interam mat mount imported in finished form, and eight certain types of materials imported in roll form, that will be used to manufacture eight other certain models of 3M Interam mat mounts. As discussed further below, 3M Interam mat mounts are used in automotive catalytic converter applications. In this letter, the eight certain types of materials will be collectively referred to as “the mount materials.”

With its protest, 3M submitted a letter from its counsel in support of 3M’s AFR. Additionally, counsel for 3M submitted additional protest claims to this office pursuant to 19 CFR §174.28 on October 19, 2005. Additionally, representatives from this office met with 3M representatives and counsel on October 27, 2005 to discuss issues raised in the protest. Counsel for 3M also furnished this office with additional information regarding our discussion on October 31, 2005. For your files, copies of the October 19, 2005 and the October 31, 2005 submissions are attached to this decision.

FACTS:

The eight certain types of mount materials at issue are used to manufacture eight certain models of 3M Interam mat mounts. The mount materials will be imported in unfinished roll form, in blankets, and are die-cut after importation into mat mounts. The mount materials, as well as the 3M Interam mat mounts made from them, are categorized by product family. The eight mount materials at issue, in their respective product families, are:

Non-Intumescent Mount Materials (3 types)

Interam 1500HT, Interam 1100HT, Interam 1101HT

Intumescent Mount Materials (4 types)

Interam 100, Interam IM, Interam IS, Interam ISL

Hybrid Mount Materials (1 type)

Interam 2000 HTX

The one certain model of 3M Interam mat mount (imported in finished form) is the Interam 1100 Edge Seal. This mat mount is also in the hybrid family.

The articles in each family have substantially similar compositions. The minor differences between the articles in each family do not affect their classification. Accordingly, in this letter, classification of the mount materials and mat mount will be addressed on a family basis.

Protestant provided approximate compositions of the mount materials and mat mount by weight. However, classification of the articles will be based on lab analyses of samples of the mount materials conducted by CBP’s Office of Laboratory and Scientific Services, the results of which are presumed to be correct. See generally Headquarters Ruling (“HQ”) 966945, dated March 22, 2005.

The non-intumescent mount materials are composed of nonwoven, multi-layered fibrous material. According to CBP lab analysis, the non-intumescent mount materials each consist, by weight, of at least 85 percent ceramic fibers based on aluminum and silicon oxides. The remainder of each non-intumescent mount material is an acrylic copolymer binder, or acrylic copolymer binder and plastic film (ethylene-propylene copolymer type).

The intumescent mount materials are composed of nonwoven material with mineral flakes (unexpanded vermiculite) bonded together with an organic binder. The intumescent mount materials each consist of unexpanded vermiculite (49 to 59 percent by weight) and ceramic fibers (32 to 37 percent by weight) based on aluminum and silicon oxides. The mount materials also contain small amounts of an XXXX XXXX binder or XXXX XXXX binder and plastic film (polyethylene type).

The hybrid mount material at issue is constructed by bonding intumescent mount materials and non-intumescent mount materials together. The Interam 2000 HTX is constructed of XXXX mount material which have been wet-laid with XXXX to form a multilayer material. The hybrid mat mount at issue, the Interam 1100 Edge Seal Hybrid, is constructed of a center piece of XXXX, with pieces of XXXX along its edges. The pieces in the Interam 1100 Edge Seal mat mount are bonded together with a laminate to form a one-piece assembly. Again, the Interam 1100 Edge Seal is a finished product at the time of importation. Unlike the mount materials at issue in this case, the Interam 1100 Edge Seal mat mount is not die-cut post importation. However, because the form (finished or in rolls) does not affect the classification of the hybrid mount material and mount mat, articles in the hybrid family will hereinafter be jointly referred to as “hybrid mount material/mat mount.”

Fifty-six shipments of the various quantities of the mount materials and mat mounts were entered through the Port of Minneapolis from April 8, 2003 through April 30, 2004. Each shipment was entered under subheading 6806.90.00.90, HTSUSA, which provides for: “Slag wool, rock wool and similar mineral wools; exfoliated vermiculite, expanded clays, foamed slag and similar expanded mineral materials; mixtures and articles of heat-insulating, sound-insulating or sound absorbing mineral materials, other than those of heading 6811 or 6812, or of chapter 69: Other.”

Each entry was reclassified by the CBP and the entries were liquidated from August 18, 2004 to August 27, 2004 under subheading 6806.10.00.90, HTSUSA, which provides for: “Slag wool, rock wool and similar mineral wools; exfoliated vermiculite, expanded clays, foamed slag and similar expanded mineral materials; mixtures and articles of heat-insulating, sound-insulating or sound absorbing mineral materials, other than those of heading 6811 or 6812, or of chapter 69: Slag wool, rock wool and similar mineral wools (including intermixtures thereof), in bulk, sheets or rolls, Other: Other.”

Further review of Protest Number 3501-04-100039 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.

In its letter in support of the protest (submitted when the protest was filed), protestant stated that all of the mount materials and mat mount (referred to in its submission as “Interam family products”) were for use in automotive catalytic converter applications:

Interam family products are used in catalytic converter applications for heat and pressure management. The various products are fitted inside the metal canister part of the catalytic converter assembly, wrapping around the catalytic converter’s honeycomb substrate. As the assembly radiates heat, the Interam products expand, providing support and cushion between the substrate and metal canister. The products also function as an internal heat insulator. At issue are three variations of the Interam product family: Intumescent, Non-Intumescent, and Hybrid mats. The type of Interam mat that should be used in a particular application depends on various factors, including the catalytic converter assembly monolith type and shape, canning method, closing speed, and use temperature.

A webpage on 3M’s website provides additional information about the mats mounts, the products which the mount materials will be manufactured into (except for the Interam 1100 Edge Seal, which is a mat mount at the time of importation):

Keeping a catalytic converter working properly is a major challenge. The monolith must be cushioned yet firmly positioned inside its metal housing over a range of more than 1,700-degrees F. Then there’s the need to avoid internal gas blow-by and provide built-in heat shielding. Resembling a felt-like blanket, the 3M Interam mat mount expands and increases its holding force as converter temperatures rise. The product holds monoliths securely in place despite substantial thermal expansion differentials between monolith and container and cushions the monolith from road shock and vibration. It also serves as a gas seal to prevent blow-by and dramatically lowers the outside converter shell temperature while reducing the radial thermal gradient in the monolith.

In its letter in support of the protest, 3M asserted that, pursuant to GRI 1 and GRI 6, all eight models of the mount materials and the mat mount at issue were properly classified as entered.

In its additional claims submitted on October 19, 2005, however, 3M amended its argument in regard to the non-intumescent mount materials, asserting that the four types of mount materials in this family were properly classified in subheading 6903.20.0000, which provides for: “Other refractory ceramic goods (for example, retorts, crucibles, muffles, nozzles, plugs, supports, cupels, tubes, pipes, sheaths and rods), other than those of siliceous fossil meals or of similar siliceous earths: Containing by weight more than 50 percent of Alumina (AL2O3) or of a mixture or compound of alumina and silica (SiO2)” or, alternatively, properly classified as entered. Also in its additional claims submitted on October 19, 2005, 3M clarified that the non-intumescent mount materials (referred to in its submission as “Non-Intumescent materials”) are not used solely in automotive catalytic converter applications, stating:

The Non-Intumescent materials are imported in “jumbo” rolls and later die cut in the United States to adapt the merchandise for automotive use.
the Non-Intumescent materials in their imported condition may be used in a variety of refractory applications. It is only after die-cut manufacturing in the United States that the material is adapted to be used solely with catalytic converter systems.

ISSUE:

What is the classification of the intumescent mount materials, the hybrid mount material/mat mount, and the non-intumescent mount materials?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. CBP believes the EN should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

As 3M’s claims in regard to the intumescent mount materials and the hybrid mount material/mat mount are the same (that these articles were correctly classified as entered in subheading 6806.90.00.90, HTSUSA), we will address their classification first. In this case, it is undisputed that the intumescent mount materials and hybrid mount material/mat mount are classified in heading 6806, HTSUSA, which provides for: “Slag wool, rock wool and similar mineral wools; exfoliated vermiculite, expanded clays, foamed slag and similar expanded mineral materials; mixtures and articles of heat-insulating, sound-insulating or sound absorbing mineral materials, other than those of heading 6811 or 6812, or of chapter 69.” It is our view that the intumescent mount materials and hybrid mount material/mat mount are classified in this heading pursuant to GRI 1 as mixtures of heat-insulating mineral materials, provided for by the third part of the heading.

The EN to heading 68.06 state that the heading covers heat-insulating, sound-insulating or sound absorbing mixtures of mineral materials in bulk which may be formed, in part, by the mineral wools described earlier in the EN to that heading. The EN states that such mineral wools include “ a class of ‘alumino-silicates’ known as ‘ceramic fibers.’ They are formed by fusing a blend of alumina and silica, in varying proportions, sometimes with the addition of small amounts of other oxides such as zirconia, chromia or boric oxide, and by blowing or extruding the melt into a mass of fibres.”

The intumescent mount materials and hybrid mount material/mat mount are composed, in varying quantities, of ceramic fibers. As reflected in the EN to heading 68.06, these ceramic fibers are a permissible inclusion in mixtures covered by the third part of the heading. The intumescent mount materials and hybrid mount material/mat mount also contain significant amounts of unexpanded vermiculite. While unexpanded vermiculite, in its crude state, is classified in heading 2530, HTSUSA, the presence of this vermiculite in the mount materials and mat mount does not preclude those articles from classification in heading 6806, HTSUSA. 3M has represented to CBP that this vermiculite, in addition to providing the articles’ intumescent (expansion when exposed to heat during application) properties, also functions as a sound-insulator in its unexpanded state, as well as its expanded state (when heated during application). CBP also believes that this unexpanded vermiculite functions, to some degree, as a heat-insulator during application, as expanded vermiculite is often used as an insulator. Although these heat-insulating properties may be latent at the time of importation, the component does function as a heat-insulator when in place in the catalytic converter. In light of these functionalities, we find that the presence of the unexpanded vermiculite does not preclude the intumescent mount materials and hybrid mount material/mat mount from classification in heading 6806, HTSUSA. To the contrary, the vermiculite serves an insulator and, hence, is a permissible inclusion in the mixtures.

Considering the above, we find the intumescent mat materials and hybrid mat material/mat mount are classified in subheading 6806.90.00, HTSUSA, the subheading covering merchandise named in the third part of heading 6806, HTSUSA. These mats are specifically provided for in subheading 6806.90.00.90, HTSUSA, and were properly classified as entered.

We now turn to the classification of the non-intumescent mount materials. Before any consideration of subheadings, it is necessary to determine a single correct heading for the merchandise at issue. See Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). The headings under consideration for classification of the non-intumescent mount materials are heading 6806, HTSUSA, and heading 6903, HTSUSA, which provides for: “Other refractory ceramic goods (for example, retorts, crucibles, muffles, nozzles, plugs, supports, cupels, tubes, pipes, sheaths and rods), other than those of siliceous fossil meals or of similar siliceous earths.”

As its primary argument in its additional claims submitted on October 19, 2005, 3M asserts that the non-intumescent mount materials are classified in heading 6903, HTSUSA, pursuant to GRI 1. As stated previously, CBP reclassified the non-intumescent mount materials in the entries covered by Protest 3501-04-100039 to subheading 6806.10.0090, HTSUSA.

Note 1 to Chapter 69, HTSUSA, states, in relevant part, that: “[t]his Chapter applies only to ceramic products which have been fired after shaping.” “Ceramic article” is defined in U.S. Additional Note 1 to the Chapter and “refractory” is defined in U.S. Additional Note 2 to the Chapter. “Fired after shaping” or “shaping” is not defined in the HTSUSA. The General EN to Chapter 69 state that products of the Chapter undergo a manufacturing process comprising the following main stages: (i) preparation of the paste (or body), (ii) shaping, (iii) drying, (iv) firing, and (v) finishing. The General EN continues stating that “[f]iring, after shaping, is the essential distinction between the goods of this Chapter and the mineral or stone articles classified in Chapter 68 .” In regard to the shaping stage, the General EN states that “[t]he prepared powder or paste [produced in the preparation stage] is then shaped as nearly as possible to the desired form.”

In its October 19, 2005 submission, 3M described the manufacturing process of the non-intumescent mount materials. The process can be described as a “sol-gel” process in which aqueous solution and silicon compound solutions are synthesized to produce a syrup which is extruded through a dye with small holes. 3M states that, after extrusion, “[t]he spaghetti-like forms undergo further spinning at room temperature forming the precursor fiber, which is completely amorphous. At this stage, the material is organic and not yet considered to be ceramic. The precursor fiber then undergoes firing at a temperature of at least 800°C to produce a fiber with the desired crystalline level and density.” After firing, the mount materials are either further manufactured through what is described as a “dry-laid” process, with the mount materials being XXXX and XXXX with a resin binder, or brought to their required density levels through a binder-absorption and “papermaking” process.

This “sol-gel” process described above does not resemble the process outlined in the General EN to Chapter 69. 3M’s manufacturing process does not involve preparation of a powder or paste, or drying before firing. Additionally, manufacturing processes that occur after firing constitute more than mere “finishing” of the mount materials. The most significant difference, however, in the process outlined in the General EN to Chapter 69 and 3M’s manufacture process of the non-intumescent mount materials is the complete absence of shaping in 3M’s process. 3M’s statement above, recognizing that the precursor fiber is “completely amorphous” before firing emphasizes the omission of shaping in 3M’s process. In light of the above, we find that the non-intumescent mount materials do not meet the terms of Note 1 to Chapter 69, HTSUSA, as they are not products which have been “fired after shaping.” Consequently, the non-intumescent mount materials are not provided for, and are therefore not classified in, a heading in Chapter 69, HTSUSA.

While the non-intumescent mount materials cannot be classified in Chapter 69, HTSUSA, because the articles do not meet the terms of Note 1 to Chapter 69, HTSUSA, we point out that, even if the materials met the terms of the note, they would not be classifiable in heading 6903, HTSUSA, because the materials are not “goods.” Articles of Chapter 69 are classified according to kind (bricks, tiles, sanitary ware, etc.). See General EN to Chapter 69. Heading 6903, HTSUSA, provides specifically for “Other refractory ceramic goods (for example, retorts, crucibles, muffles, nozzles, plugs, supports, cupels, tubes, pipes, sheaths and rods).” The heading specifically covers “goods.” The goods named in the heading text are articles that underwent a manufacturing process (as described in the General EN to Chapter 69) prior to importation in which they transformed from materials to goods. In this process, they were shaped as nearly as possible to their desired final form, dried, fired and finished. At the time of importation, the goods of heading 6903 are in identifiable physical form with their uses fixed with certainty.

In its October 31, 2005 submission, 3M asserts that the non-intumescent mount materials are “goods.” 3M cites several court cases which it believes support this assertion. These cases include Ludvig Svensson, Inc. v. United States, 23 C.I.T. 573 (Ct. Int'l Trade 1999) and E.M. Chemicals v. United States, 13 C.I.T. 849 (Ct. Int'l Trade 1989), aff’d 920 F.2d 910 (Fed. Cir. 1990). We do not find the issues, merchandise, or tariff provisions at issue in the cases cited by 3M to be to be substantially similar to those in this matter and, consequently, we do not find that those cases support that the non-intumescent mount materials are “goods.” In the cases cited, merchandise was held to constitute “parts” rather than “materials.” In the case at hand, 3M does not assert that the intumescent mount materials are “parts,” but “goods.” For this reason, we find reliance on the cases cited above to be misplaced. The non-intumescent mount materials are not “parts” of refractory ceramic goods. Rather, the mount materials are transformed into mat mounts when they are die-cut into precise shapes and sizes. The mat mounts are not combined or joined with any other components.

Additionally, we do not regard the non-intumescent mount materials as incomplete or unfinished articles which have the essential character of the complete or finished article (a mat mount) and are, consequently, classified as mat mounts pursuant to GRI 2(a). While we recognize that the mount materials only require die-cutting to be made into mat mounts, we regard this cutting process as a important manufacturing process that is necessary to fix the identity of articles as mat mounts and give them the essential character of a “good” (a mat mount). Until this die-cutting, the non-intumescent mount materials are materials that can manufactured into, not just mat mounts in automotive catalytic converters, but articles for use in a variety of refractory applications. This is reflected in several statements in 3M’s October 19, 2005 submission which are set forth earlier in this decision. Again, the non-intumescent mat materials are not classified in Chapter 69, HTSUSA, because the articles do not meet the terms of Note 1 to Chapter 69, HTSUSA. We only address the “goods” issue in response to 3M’s assertions in its October 31, 2005 submission.

According to CBP lab analyses, the non-intumescent mount materials at issue are almost purely ceramic fibers based on aluminum and silicon oxides. In its October 19, 2005 submission, 3M asserts that this identification is incorrect. 3M states that these fibers, due to their high alumina content and purity, are described in the industry as “alumina fibers (ALF)” and are not regarded as “ceramic fibers.” We disagree with 3M’s assertion. We recognize that the high alumina content of these fibers give them properties, including exceptional high-temperature resistance, which make them superior for certain refractory applications.

We believe that the fibers at issue are referred to as “mullite grade” fibers with a maximum use limit of 1600°C. We also acknowledge that ALF is not manufactured using melt technologies conventionally used to form ceramic fibers (because of high melting points and low viscosities). Nevertheless, ALF are recognized as ceramic fibers. Interview with Professor Jude O. Iroh, PhD, University of Cincinnati, College of Engineering, Department of Chemical & Materials Engineering, April 12, 2006.

Ullman’s Encyclopedia of Industrial Inorganic Chemicals and Products describes polycrystalline fibers, a recognized class of refractory ceramic fibers:

Polycrystalline fibers (62-100% AL2O3) are sol-gel derived fibers from, e.g., aluminum salts, colloidal silica, organosilane, and modifiers. Rotary spinning (short staple fibers) is also practiced, as is the production of continuous filaments. After formation the fiber must be dried and calcined.

The fiber is used in loose form or processed into any of a variety of flexible or essentially rigid forms. Blankets and textiles are examples of products made by an air-laid system. Ullman’s Encyclopedia of Industrial Inorganic Chemicals and Products, Vol. 5. Phosphate Fertilizers to Sodium Carbonates, (1998).

As this definition reflects, polycrystalline fibers with high 62-100% AL2O3 content (also referred to as “polycrystalline alumina fibers”) manufactured through a sol-gel process and used in refractory applications are recognized as “ceramic fibers.” We note that 3M described the non-intumescent mount materials at issue as “polycrystalline alumina fibers” in its submissions.

The non-intumescent mount materials at issue fall squarely within the description above. The EN to heading 68.06 state that “slag wool and rock wool” part of the heading “ includes a class of ‘alumino-silicates’ known as ‘ceramic fibers.’” As the non-intumescent mount materials are almost purely ceramic fibers based on aluminum and silicon oxides, we find that the mount materials are provided for by the first part of heading 6806, HTSUSA, covering “Slag wool, rock wool and similar mineral wools” pursuant to GRI 1. The binder and film in the non-intumescent mount materials function only to hold the articles together and do not alter the nature of the constituent material, the ceramic fibers, which are individually classified in subheading 6806.10.00, HTSUSA. The mount materials are in mineral wool form, in rolls. Consequently, pursuant to GRI 1 applied mutatis mutandis through GRI 6, these mount materials fall under the first part of heading 6806, HTSUSA (covering “Slag wool, rock wool and similar mineral wools”) and in subheading 6806.10.00, HTSUSA, the subheading providing for the articles set forth in the first part of the heading. See also HQ 967707, dated July 1, 2005, in which a monolithic catalyst seal made of a 3M Interam 1500HT mat was classified in this subheading.

HOLDING:

The 3M Interam intumescent mount materials (the Interam 100, Interam IM, Interam IS, and Interam ISL), hybrid mount material (Interam 2000 HTX), and hybrid mat mount (the Interam 1100 Edge Seal) are mixtures of heat-insulating mineral materials and are therefore classified in subheading 6806.90.00.90, HTSUSA, which provides for: “Slag wool, rock wool and similar mineral wools; exfoliated vermiculite, expanded clays, foamed slag and similar expanded mineral materials; mixtures and articles of heat-insulating, sound-insulating or sound absorbing mineral materials, other than those of heading 6811 or 6812, or of chapter 69: Other.” The column-one duty rate at the time of the entries was “Free.”

The 3M Interam non-intumescent mount materials (the Interam 1500HT, Interam 1100HT, and Interam 1101HT) are almost purely mixtures of the wools of subheading 6806.10.00, HTSUSA, and are therefore classified in subheading 6806.10.0090, HTSUSA, which provides for: “Slag wool, rock wool and similar mineral wools; exfoliated vermiculite, expanded clays, foamed slag and similar expanded mineral materials; mixtures and articles of heat-insulating, sound-insulating or sound absorbing mineral materials, other than those of heading 6811 or 6812, or of chapter 69: Slag wool, rock wool and similar mineral wools (including intermixtures thereof), in bulk, sheets or rolls, Other: Other.” The column-one duty rate at the time of the entries was 3.9 percent ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the 3M Interam intumescent mount materials (the Interam 100, Interam IM, Interam IS, and Interam ISL), hybrid mount material (Interam 2000 HTX), and hybrid mat mount (the Interam 1100 Edge Seal) as indicated above results in a partial allowance.

In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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