CLA-2 R:C:F 957455 K

Michael D. Sherman, Esq.
John B. Brew, Esq.
Counsel for Bitor America Corp.
Collier, Shannon, Rill & Scott
3050 K Street, N.W., Suite 400
Washington, D.C. 20007

RE: Revocation of New York Ruling Letter (NYRL) 857187; "Orimulsion"

Dear Sirs:

In your letter of December 21, 1994, you requested that we revoke NYRL 857187, dated November 15, 1990, which held that a product known as "Orimulsion" from Venezuela, was classified as bituminous mixtures based on natural asphalt, on natural bitumen, on petroleum bitumen, on mineral tar or on mineral tar pitch, in subheading 2715.00.00, Harmonized Tariff of the United States (HTSUS), free of duty. You further requested that we rule that the product is classified as other bitumen, natural, in subheading 2714.90.00, HTSUS, also free of duty. This letter is to inform you that NYRL 857187 no longer reflects the views of the Customs Service and is revoked in accordance with section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103- 182, 107 Stat. 2057, 2186 (1993), hereinafter, section 625), notice of the proposed revocation of NYRL 857187 was published on June 21, 1995, in the Customs Bulletin, in Volume 29, No. 25. The following represents our position.

FACTS:

The product contains 70 percent natural bitumen, 30 percent water, and less than 1 percent of a surfactant and it is used as a boiler fuel, primarily for electric utilities. It is stated that the water is added for transportation purposes and that the bitumen remains in its natural state.

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ISSUE:

The issue is whether the product is a natural bitumen or a manufactured product based on bitumen.

LAW AND ANALYSIS:

Subheading 2714.90.00, HTSUS, provides for bitumen, natural, whereas subheading 2715. 00.00, HTSUS, provides for bituminous mixtures based on natural bitumen.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represents the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN represents the considered views of classification experts of the Harmonized System Committee. While the Customs Service is not bound by the EN in interpreting the HTSUS, the EN are to be given considerable weight in Customs' interpretation of the HTSUS. It has, therefore, been the practice of the Customs Service to consult the terms of the EN when interpreting the HTSUS.

In November 1994, the 14th Session of the Harmonized System Committee decided to amend the ENs to headings 27.14 and 27.15. The changes, effective February 1, 1995, are reported in Annex L/7 to document 38.960, as follows: CHAPTER 27.

Page 222. Heading 27.14.

1. Third paragraph. New second and third sentences.

Insert the following new second and third sentences :

"The mere addition of water to natural bitumen does not change the classification of the product for the purposes of heading 27.14. Further, the heading also includes dehydrated and pulverized natural bitumen dispersed in water and containing a small amount of an emulsifier (surfactant), added solely to facilitate safety, handling or transport."

2. Fifth paragraph. Exclusions.

Insert the following new exclusion (e) :

"(e)Bituminous mixtures based on natural bitumen with added substances, other than water and emulsifiers (surfactants) necessary solely to facilitate safety,

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handling or transport (heading 27.15)."

Reletter present exclusion "(e)" as "(f)".

Page 223. Heading 27.15. Third paragraph. Exclusions.

Insert the following new exclusion (d) :

"(d) Dehydrated and pulverized natural bitumen dispersed in water and containing a small amount of an emulsifier (surfactant), added solely to facilitate safety, handling or transport heading 27.14)."

Reletter present exclusions "(d)" and "(e)" as "(e)" and "(f)", respectively.

------- The United States supported the amendments to the EN and the amendments make it clear that natural bitumen with the mere addition of water and the addition of a small amount of emulsifier (surfactant) to facilitate safety in transportation is not a manufactured product so as to preclude classification in heading 2714. Accordingly, the product, known as "Orimulsion" described above, is classified as other bitumen, natural, in subheading 2714.90.00, HTSUS.

HOLDING:

The product known as "Orimulsion" containing 70 percent natural bitumen, with the addition of 30 percent water, and less than 1 percent of a surfactant for safety in transportation purposes and used as a boiler fuel, is classified in subheading 2714.90.00, HTSUS, with a general free rate of duty.

NYRL 857187, dated November 15, 1990, is revoked.

In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), of the Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division