HQ 951356: Request for further review of protest 3004-92-100029; Fire retardant laminate

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951356

                          July 24, 1992


CLA-2 CO:R:C:T  951356 JED

CATEGORY:  Classification

TARIFF Be.:   6810.99.0000

District Director, Seattle
United States Customs Service
c/o Port of Blaine 
9901 Pacific Highway
Blaine, Washington  98230

RE:  Request for further review of protest 3004-92-100029; Fire   
     retardant laminate

Dear District Director:

     The following is our response to the request for further
review of Protest No. 3004-92-100029, concerning your decision on
the classification of sheets of fire retardant material.

FACTS:

     The merchandise involved is fire retardant material in sheet
form.   The material is produced from the following process.
Various chemicals in powder or liquid form are combined to 
produce a slurry batch mix.  The mixture is poured on a work 
table where a fiberglass mat is laid on top.   Then more slurry 
mix is poured on the fiberglass mat and rolled out to remove air
bubbles.   This wet sheet is placed under an infrared heater to
start a chemical reaction drying process.   After curing, the 
sheet is cut to a size of 48" x 96".

     Typical use of the sheet after importation is that it is
joined to plywood (or other substrate) and used in the 
construction of houses as roof or wall sheathing, siding,
subflooring, shelving, ceiling, wall paneling, partitions or
storage containers.   However, our understanding is that the 
sheets are imported without having been joined to any other
material.

        The importer entered sheets of fire retardant material at
subheading 6811.20.0000, HTSUSA:

6811          Articles of asbestos-cement, of cellulose 
              fiber-cement or the like:
                    *          *           *
                               -2-

6811.20.0000       Other sheets, panels, tiles and similar 
                   articles

Such importation are free of duty.

     An examination of the fire retardant material by the Customs
Laboratory, Lab No. 8-91-21434-001, revealed the following,
"Laboratory analysis indicates that it is fiberglass bound with 
an inorganic material.  It does not contain asbestos or cellulose
fibers."  Due to the lack of asbestos or cellulose fibers, 
Customs considered classification in Heading 6811, HTSUSA,
inappropriate.  Customs placed the fire retardant material in
subheading 6815.99.4000, HTSUSA, "Articles of stone or of other
mineral substances (including articles of peat), not elsewhere
specified or included:  ... Other."

ISSUE:

     What is the proper classification of the above described 
fire retardant material under the HTSUSA?

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) taken in
appropriate order provide a framework for classification of 
goods under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).  The majority of imported 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.   Further, the Explanatory Notes (EN's)
to the Harmonized Commodity Description and Coding System, which
are the official interpretation of the tariff at the 
international level, while not legally binding, facilitate
classification under the HTSUSA by offering guidance in
understanding the scope of the headings and GRI's.

     When goods are prima facie classifiable under two or more
headings, GRI 3 is applicable.   In this case, since the fire
retardant material is a mixture of several substances,
classification is determined by application of GRI 3(b) which
provides that:

          Mixtures, composite goods consisting of different      
          materials or made up of different components, and goods
          put up in sets for retail sale, which cannot be
          classified by reference to 3(a), shall be classified as 
          if they consisted of the material or component which 
          gives them their essential character, insofar as this 
          criterion is applicable.
                               -3-

Explanatory Note VIII to GRI 3(b)  (EN's at pg. 4), states that:

          The factor which determines essential character will 
          vary as between different kinds of goods.  It may, for
          example, be determined by the nature of the material or
          component, its bulk, quantity, weight or value, or by 
          the role of a constituent material in relation to the 
          use of the goods.

     In documents submitted in support of the protest, the 
importer requested that information concerning the substances and
amounts thereof used in producing the fire retardant material
remain confidential.  However, in a telephone conversation
(confirmed by "fax" of July 9, 1992) with William Kolker,
President, Pyrotire Coatings of Canada Inc., permission was
obtained to state that magnesium oxychloride is present in the
material.

     The magnesium oxychloride is present in the form of a 
cement and it is Customs opinion the essential character of the
fire retardant sheets is imparted from this cement.   It is the
cement which accounts for a large portion of the weight of each
sheet, which gives rigidity to each sheet, and binds together the
remaining substances, including the chemically bound water.  The
water, release of which is triggered by the high temperature of a
fire, acts to retard the spread of that fire.

     Having determined the magnesium oxychloride cement imparts
essential character, we further find that the subject sheets of
fire retardant material are classifiable in subheading
6810.99.0000, HTSUSA.   This classification more specifically
describes the fire retardant material than Customs original 
action placing the material in Heading 6815, HTSUSA.   Subheading
6810.99.0000, HTSUSA,  is as follows:

6810    Articles of cement, of concrete or of artificial 
        stone, whether or not reinforced:
             *           *         *

6810.99.0000        Other

HOLDING:

     You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance.   A copy of this ruling should be attached to
Customs Form 19, Notice of Action, furnished to the protestant.

                              Sincerely,

                              John Durant, Director
                              Commercial Rulings Division