In this action, plaintiff Schlumberger Technology Corp. (“STC” or “Schlumber-ger”) contests the tariff classification determined by U.S. Customs and Border Protection (“Customs” or “CBP”) for two types of imported bauxite proppants suitable for use in hydraulic fracturing.
Before the court are plaintiffs and defendant’s motions for summary judgment. Schlumberger Tech. Corp.’s Mot. for Summ. J. (Nov. 22 & 25, 2013), ECF Nos. 64 (conf.), 69 (public) (“Pl.’s Mot.”); Def.’s Mot. for Summ. J. (Nov. 22, 2013), ECF Nos. 66 (conf.), 67 (public) (“Def.’s Mot.”). The court denies defendant’s motion, determining that the government’s proffered classifications are incorrect. The court grants summary judgment in favor of plaintiff.
I. Background
Schlumberger was the importer of record for two 2010 entries of bauxite prop-pants from the People’s Republic of China (“China”) that are the subject of this case (“subject merchandise” or “subject prop-pants”).
Schlumberger initiated this action by filing a summons on July 29, 2011 and a complaint on August 2, 2011. Summons, ECF No. 1; Compl., ECF No. 5. Defendant filed an answer on January 6, 2012. Answer, ECF No. 12.
Schlumberger and defendant United States each moved for summary judgment. Pl.’s Mot.; PL’s Br.; Def.’s Mot.; Mem. in Supp. of Def.’s Mot. for Summary J. (Nov. 22, 2013), ECF Nos. 66 (conf.), 67 (public) (“Def.’s Br.”). Defendant and plaintiff each opposed the other’s motion for summary judgment. Mem. of Law & Authorities in Supp. of Schlumberger Tech. Corp.’s Opp’n to Def.’s Mot. for Summ. J. (Dec. 30, 2013), ECF Nos. 71 (conf.), 72 (public) (“PL’s Opp’n”); Def.’s Opp’n to PL’s Mot. for Summ. J. (Dec. 30, 2013), ECF Nos. 73 (conf.), 74 (public) (“Def.’s Opp’n”). Plaintiff and defendant each filed reply briefs. Mem. of Law & Authorities in Supp. of Schlumberger Tech. Corp.’s Reply to Def.’s Opp’n to Schlumberger’s Mot. for Summ. J. (Jan. 21, 2014), ECF Nos. 78 (conf.), 79 (public) (“PL’s Reply”); Def.’s Reply Mem. (Jan. 21, 2014), ECF Nos. 80 (conf.), 81 (public) (“Def.’s Reply”).
II. Discussion
A. Jurisdiction and Standard of Review
The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(a) (2006), according to which the court has jurisdiction over an action brought under section 515 of the Tariff Act of 1930 (“Tariff Act”), as amended, 19 U.S.C. § 1515 (2006), to contest a tariff classification by Customs. The court proceeds de novo in actions brought to contest CBP’s denial of a protest. See Customs Courts Act of 1980 § 301, 28 U.S.C. § 2640(a)(1) (2006) (directing the Court of International Trade to “make its determinations upon the basis of the record made before the court”).
In cases involving a disputed tariff classification, the court, as an initial step, considers whether “the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Jarvis Clark Co. v. United States,
The court’s determining the correct classification involves two steps. Faus Grp., Inc. v. United States,
Tariff classification is determined according to the General Rules of Interpretation (“GRIs”), and, if applicable, the Additional U.S. Rules of Interpretation (“ARIs”).
Unless there is evidence of “contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings.” La Crosse Tech., Ltd. v. United States,
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” USCIT R. 56(a). Where tariff classification is at issue, “summary judgment is appropriate when there is no genuine dispute as to the underlying factual issue of exactly what the merchandise is.” Bausch & Lomb, Inc. v. United States,
B. General Description of the Merchandise
The facts as stated in this Opinion are not in dispute between the parties except where specifically indicated.
The subject proppants are produced from' bauxite and are used in hydraulic fracturing, a technique for production from hydrocarbon reservoirs in which a fluid under high pressure is injected into the rock formation to create a fracture. See Int’l Trade Comm’n, Calcined Bauxite Proppants from Australia: Determination of the Comm’n in Investigation No. 731-TA-411 (Final) Under the Tariff Act of 1930, Together With the Info. Obtained in the Investigation at A-2, USITC Inv. No. 731-TA-411 (Final), March 1989 (“ITC Investigation on Calcined Bauxite Prop-pants ”); Stipulation No. 52. Plaintiff Schlumberger, an oil well-site services provider, incorporates proppants, such as those at issue in this litigation, into packages of oil well services it offers to customers. Stipulation Nos. 1, 8, 36. After importation, the proppants are combined with other materials and liquids to create the fracturing fluid, and, once injected, the proppants prevent the fractures from closing. Stipulation Nos. 36, 52.
The proppants at issue here are intermediate strength proppants that are less than a millimeter in diameter. Stipulation Nos. 2(a), 2(a)(i), 3(a), 3(a)(i), 20(b), 22(a), 23(a). The Los Angeles/Long Beach entry was comprised of “S580-2040 Ceramic Proppants” (“20/40 proppants”), and the Dallas entry was comprised of “S580-4070 Ceramic Proppants” (“40/70 proppants”). Stipulation Nos. 2(a), 3(a). The subject proppants were imported in 3,200 pound sacks and in bulk shipments. Stipulation No. 2(b), 3(b), 39, 41. The numbers
Proppant manufacturing typically involves several basic steps: “milling and mixing of raw materials; granulation; drying and screening; firing; cooling down and screening of the proppant, testing, and packing.” Stipulation No. 13. In the first step, the raw materials are milled into a fine powder with particles smaller than 300 micron (0.3 millimeters). Stipulation Nos. 27, 45. During this step, limited quantities of other naturally-occurring minerals, described as dopants, were added to the bauxite and are present in the final product. Stipulation No. 53. One dopant was added to both types of proppants to assist in phase formation and to lower firing temperature during production. Id. Another dopant was added only to the 20/40 proppants to help increase the crush resistance of the final product. Id.
Second, during the “granulation” or “agglomeration” phase, the powder and some added water are placed in a pan granulator. Stipulation No. 28(b). Several organic “binders,” including potentially dextrin, starch, polyvinyl alcohol or methyleellu-lose, are added to assist in the formation of granules, although these binders later are burnt off during the “firing” process (described below) and are absent from the final product. Stipulation Nos. 14, 28(a), 55. The circular motion in the pan granu-lator results in granules having a significant degree of roundness and sphericity. Stipulation Nos. 22(a), 23(a), 28(c). Third, following granulation, the granules are sorted to comply with the size specification and dried to remove excess water. Stipulation No. 29(a), (c), (d). Granules that are too large are returned for additional milling and granules that are too small are returned for additional granulation. Stipulation No. 29(b).
Fourth, the pellets that fall within the size specifications are then fired in a kiln. Stipulation No. 30(a), 30(g). Fifth, after firing, the proppants are sieved to ensure that 90% of the proppants fall within the required size range. Stipulation Nos. 31(b), 31(c). The 20/40 proppants were sieved so that 90% of the granules were between 0.850 millimeters and 0.425 millimeters in diameter. Stipulation No. 31(b). The 40/70 proppants were sieved so that 90% of the granules are between 0.425 millimeters and 0.2125 millimeters in diameter. Stipulation No. 31(c).
C. The Tariff Provisions Identified by the Parties
Concluding that the imported merchandise is described by the tariff term “[c]e-ramic wares for ... technical uses” as used in the article description for heading 6909, HTSUS, Customs classified both types of the proppants at issue under the HTSUS as follows:
6909.19.50 Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods; Other, other .4 % ad val.
Plaintiff moves for summary judgment classifying the merchandise in the following HTSUS provision:
2606.00.00 Aluminum ores and concentrates: Bauxite, calcined, Other .Free
In the alternative, plaintiff advocates classification according to either of the following HTSUS provisions:
2818.10.20 Artificial corundum, whether or not chemically defined; aluminum oxide, aluminum hydroxide: Artificial corundum: Other . Free
3824.90.39 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: Mixtures of two or more inorganic compounds: Other .Free
In its motion, defendant seeks summary judgment classifying the proppants in subheading 6909.19.50, the tariff classification Customs determined upon liquidation, but argues in the alternative, with respect to subheading 3824.90, that the proppants are not “[mjixtures of two or more inorganic compounds” and therefore are classifiable as follows:
3824.90.92 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 .5% ad val.
Defendant also claims that if the court should find that the proppants are not “wares” within the meaning of heading 6909, HTSUS, that the proppants may be classifiable as follows:
6914.90.80 Other ceramic articles: Other: Other.5.6% ad val.
D. The Classification under Heading 6909, HTSUS Determined by Customs and Advanced by Defendant in Moving for Summary Judgment, Is Incorrect, as is Defendant’s Alternative Classification under Heading 69U
Under the two-step process set forth in Jarvis Clark, the court first considers whether Schlumberger has met its burden of showing that the government’s classification is incorrect. The court concludes that Schlumberger has met this burden. The classification Customs determined upon liquidation, which was subheading 6909.19.50, HTSUS (“Ceramic wares for laboratory, chemical or other technical uses; ... Other: Other: Other.”), is also the primary classification for which the government seeks summary judgment.
GRI 1 provides that classification, in the first instance, shall “be determined according to the terms of the headings and any relative section or chapter notes.” GRI 1, HTSUS. The terms of heading 6909, HTSUS are as follows:
Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods.
Heading 6909, HTSUS. According to defendant’s argument, the heading term “[c]eramic wares for ... technical uses” describes the merchandise in question. Def.’s Br. 20.
The proppants may be described as “ceramic” and, at least arguably, are produced for a use that may be described by the term “technical.”
The stipulated facts that the proppants are less than a millimeter in size and are produced in bulk, not as individual items or articles, support the conclusion that the proppants are not ceramic “wares” within the meaning of that term as used in heading 6909, HTSUS. See Stipulation Nos. 2(b), 3(b), 39, 41. This conclusion is also supported by samples of the merchandise. Plaintiff provided two plastic bags containing samples of proppants, which plaintiff describes as having been produced by the same two companies that produced the subject merchandise (one sample described as being of 20/40 proppants and the other of 40/70 proppants).
The Explanatory Note to heading 6909 further supports the court’s conclusion that the term “[c]eramic wares” does not describe a semi-processed substance such as an ore that has been milled, granulated, and fired but not advanced to a state that is correctly described as an “item,” “article,” or “ware.” The EN states that “[t]his heading covers a range of varied articles usually made from vitrified ceramics (stoneware, porcelain or china, steatite ceramics, etc.), glazed or unglazed.”
The Explanatory Note to Chapter 69 is another indication that the drafters of the Harmonized System did not consider HS heading 69.09 to be the correct heading for products such as bauxite proppants. The chapter Explanatory Note describes the organization of chapter 69 into two sub-chapters (Subchapters I and II), as follows:
According to the composition and the firing process adopted the following products are obtained:
I. Goods of siliceous fossil meals or of similar siliceous earths and refractory goods of sub-Chapter I (headings 69.01 to 69.03).
II. Other ceramic products, consisting essentially of common pottery, stoneware, earthenware, porcelain or china, etc. constituting sub-Chapter II (headings 69.04 to 69.14).
EN, Gen. Note (A), chapter 69. Subchap-ter I clearly does not describe the prop-pants. The description of Subchapter II in the chapter Explanatory Notes, even though containing the words “essentially” and “etc.” and thereby admitting of possible exceptions, nevertheless easts serious doubt on the government’s preferred classification. Id. Proppants produced from bauxite ore are of a different commercial category of goods than are “pottery, stoneware, earthenware, porcelain or china.” The Explanatory Note to Subchapter II further clarifies that “other ceramic products” include pottery made from clay, glazed white or coloured ceramics, stoneware that is normally glazed, semi- or imitation porcelains that are “decorated and glazed to give the commercial appearance of porcelain,” certain goods made from “powdered steatite, etc. generally mixed with clay,” and “articles made of refractory materials (e.g., sintered alumina) ... ” not designed as refractory goods.
Defendant argues that agglomeration shapes the bauxite ore into ceramic wares, within the meaning of note 1 to chapter 69, because the proppants “were intentionally formed into specification-conforming balls.” Def.’s Reply 7. Defendant adds that “[t]he process of granulation and agglomeration into particle spheres is commonly and commercially recognized in the industry as forming and shaping the particles to create the desired physical and mechanical performance requirements of the proppants.” Def.’s Br. 8 (citing Decl. of Michael Vincent ¶¶ 18-19, 22, 24 (“Vincent Decl.”), Ex. 7 to Def.’s Br.; Decl. of William M. Carty ¶¶ 37-43 (“Carty Decl.”), Ex. 6 to Def.’s Br.). This argument is unconvincing. Although the individual granules have a degree of sphericity, the agglomeration process produces granules of widely varying sizes, not individual articles of a precise size and shape.
Defendant notes that the Explanatory Note to heading 6909 provides “grinding apparatus and balls, etc., for grinding mills” as examples of “[cjeramic wares for other technical uses.” Def.’s Br. 26 (citing EN 69.09). Defendant asserts that ceramic grinding media may be shaped via granulation, directing the court’s attention to a patent for certain ceramic grinding media, id. at 27 (citing Carty Decl. ¶ 94; U.S. Patent No. 3,486,706 (Dec. 30, 1969) (“U.S. Patent No. 3,486,706”), Ex. 27 to Def.’s Opp’n), specifically, “small ceramic spheroids” that are formed by a process of placing raw materials in “a rotating pelle-tizing disc or drum” with water, drying, and firing, U.S. Patent No. 3,486,706 at Column 1, 2. Defendant’s reference to U.S. Patent No. 3,486,706 does not convince the court that the proppants are classified under heading 6909. Grinding media are not the same product as the proppants, and as to the process of forming the grinding media, the patent itself states that “[i]t is generally desirable to screen and repro
Defendant also asserts that the subject proppants are “shaped” within the meaning of the note 1 to chapter 69 because the proppants “are chosen for use in hydraulic fracturing specifically for their physical characteristics, such as spherical shape, roundness and strength.” Def.’s Br. 4. Defendant asserts further that the function of the subject proppants “derives significant benefit from nearly perfect proppant spheres in order to maximize conductivity of hydrocarbon flow....” Id. at 25 (citing Vincent Decl. ¶ 18). Defendant also notes that the Schlumberger’s own patent applications indicate “the importance of roundness and sphericity.” Id. (citing Patent Appl. (WO 2008/105678 Al)); see also Def.’s Opp’n 15-16; Carty Decl. ¶ 47 (“Schlumberger patents refer to granulation as a forming or shaping step.”). Defendant’s arguments highlight that a significant degree of roundness and sphericity are important for ceramic prop-pants, Def.’s Br. 25, but these arguments do not make the case that the proppants at issue are ceramic articles or “wares” that fall within the intended scope of heading 6909.
Defendant argues that Raschig rings, a type of ceramic ware for technical use provided as an example in the Explanatory Note to heading 6909, are analogous to the subject proppants. Def.’s Br. 27-28. The court disagrees. Raschig rings are hollow tubular goods made to a specific, cylindrical shape. See Ex. 11 to Def.’s Reply; “Raschig” (n.), Oxford English Dictionary Online (June 2015), available at http:// www.oed.com/view/Entry/158295? redirectedFrom=Raschig+ring#eid 26685723 (last visited July 13, 2015) (“[A] small cylindrical ring usually made of glass, metal, or ceramic material, and used in large numbers as packing in towers and columns for fractionation, solvent extraction, etc.”). In this respect, they do not resemble the bulk, granular goods that are before the court.
In summary, because the proppants at issue are not described by the terms of heading 6909, defendant’s proffered classification of subheading 6909.19.50, HTSUS is incorrect, and the court, pursuant to GRI 1, HTSUS, next must consider other headings of the HTSUS.
Defendant suggests that, should the court conclude that the term “wares” as used in heading 6909 is insufficiently broad to include the proppants, then “an alternative classification would be for ‘other ceramic articles: other: other’ under subheading 6914.90.80, HTSUS,” which carries a duty of 5.6% ad valorem. Def.’s
E. The Proppants Are Described by the Terms of Heading 2606, HTSUS
In seeking summary judgment, plaintiff submits that the subject bauxite proppants are described by the terms of ■ heading 2606, “[a]luminum ores and concentrates.” Plaintiff is correct.
The proppants- at issue are produced from non-metallurgieal grade bauxite mined in China.
The processes to which the bauxite was subjected in the production of the prop-pants, as described in the parties’ stipulations, did not include concentration of the ore. Therefore, the question presented is whether the proppants are described by
Note 2 to chapter 26 states that “[f]or the purposes of headings 2601 to 2617, the term ‘ores’ means minerals of mineralogical species actually used in the metallurgical industry for the extraction of mercury, of the metals of heading 2844 or of the metals of section XIV or XV, even if they are intended for non-metallurgical purposes.” Note 2 to chapter 26, HTSUS. The Explanatory Note to heading 2606 provides specifically that “[t]his heading covers bauxite (hydrated aluminum oxide containing variable proportions of iron oxide, silica, etc.).... ” EN 26.06.
Because there is no dispute that the proppants were produced from bauxite, the next question is whether the bauxite has been subjected to processes that exclude the resulting proppants from the scope of heading 2606. Note 2 to chapter 26, HTSUS, provides that “[hjeadings 2601 to 2617 do not, however, include minerals which have been submitted to processes not normal to the metallurgical industry.” Defendant argues that the subject prop-pants have been submitted to such processes. Def.’s Opp’n 34-35.
The Explanatory Note to chapter 26 provides that “[processes to which products of headings 26.01 to 26.17 may have been submitted include physical, physico-chemical or chemical operations, provided they are normal to the preparation of the ores for the extraction of metal.” EN, Gen. Note, chapter 26. The notes add that “[w]ith the exception of changes resulting from calcination, roasting or firing (with or without agglomeration), such operations must not alter the chemical composition of the basic compound which furnishes the desired metal.” Id. The Explanatory Note further provides that:
[Pjhysical or physico-chemical operations include crushing, grinding, magnetic separation, gravimetric separation, flotation, screening, grading, agglomeration of powders (e.g., by sintering or pelleting) into grains, balls or briquettes (whether or not with the addition of small quantities of binders), drying, cal-cination, roasting to oxidize, reduce or magnetise the ore, etc. (but not roasting for purposes of sulphating, chloridating, etc.).
Id. (emphasis added).
The subject proppants were produced by “milling and mixing of raw materials; granulation; drying and screening; firing; cooling down and screening of the prop-pant, testing, and packing.” Stipulation No. 13. Grinding and agglomeration “into grains, balls or briquettes” are processes specifically identified in the Explanatory Note to chapter 26. Additionally, the proppants underwent calcination, another process specifically identified in the EN to Chapter 29. To calcine a product is “to heat (as inorganic materials) to a high temperature but without fusing in order to effect useful physical and chemical changes.... ” “Calcine” (v.), Webster’s Third New Int’l Dictionary, Unabridged 315 (3d ed. 2002); “Calcination,” Hawley’s Condensed Chem. Dictionary 190 (14th ed. 2001) (Richard J. Lewis Sr. ed.) (“Heating of a solid to a temperature below its melting point.... Calcination is often used in the benefaction of ores.”); see also ITC Investigation on Calcined Bauxite Proppants at A-13 (providing that calcination is “heating at approximately 800 F to drive out chemically held water” and that sinter-ing is “firing at approximately 2,800 F to bring the product to 80 percent of its fusion (melting) point, maximizing the density of the crystal structure (a sintered proppant is twice as strong as a fused/melted proppant.”)). The subject proppants were heated, but not to the fusing temperature of aluminum oxide,
The court next considers the question of whether the addition of one or both of the dopants removes the proppants from the scope of heading 2606 by operation of chapter note 2. The parties stipulate that during the milling of the raw bauxite, limited quantities of one or two naturally-occurring minerals, described as dopants, wére added and that these minerals are present in the final product.
The question presented is whether the court should hold that the addition of small amounts of one or both of these minerals to the milled ore prior to granulation and agglomeration is a process “not normal to the metallurgical industry” within the meaning of chapter note 2. Neither party has identified a technical dictionary or similar technical source that addresses the question as a matter of definition, and the court is unable to find such a source. Nevertheless, the court’s own construction of the intended meaning of chapter note 2 causes it to conclude, for a number of reasons, that the additions of the dopants is not the type of process the drafters of the Harmonized System intended would result in the exclusion of calcined bauxite proppants from classification within chapter 26, HTSUS.
First, in discerning the meaning of the phrase “submitted to processes not normal to the metallurgical industry,” the court finds persuasive the argument plaintiff advances, and supports with a citation to a technical source, as to the definitions of the two dopants. This technical source demonstrates that each of the two compounds that the parties identify as dopants are also found as impurities in bauxite ore.
Second, the intended scope of HS Chapter 26 (and, as to bauxite, the specific scope of heading 2606) includes not only “ores” but also “concentrates,” which are “ores which have had part or all of the foreign matter removed by special treatments, either because such foreign matter might hamper subsequent metallurgical operations or with a view to economical transport.” EN to Chapter 26. The court considers it illogical to regard a “special treatment” that removes impurities as permissible under Chapter 26 but also to regard as impermissible the reverse — a step that is simpler than concentration and that essentially puts back into the source material a bauxite impurity.
Third, in addition to concentration of ore, other processes that actually advance milled ore beyond its natural condition are also permitted, including calcination. As the EN to Chapter 26 explains, “[w]ith the exception of changes resulting from calci-nation, roasting, or firing (with or without agglomeration), such operations must not alter the chemical composition of the basic compound which furnishes the desired metal.” The addition of the dopants to the milled ore could not have altered the chemical composition of the aluminum oxides present in the ore. Also, the addition of dopants is relatively insignificant when viewed in comparison to the processes that are permitted and that do advance the ore from its natural condition, including concentration, calcination, and “agglomeration of powders ... into grains, balls, or briquettes (whether or not with the addition of small quantities of binders) .... ” id.
Finally, concluding that the addition of one or both of the dopants is sufficient to change the tariff classification to one outside of chapter 26 produces an impracticable result. As demonstrated in this case, Customs has the capability of analyzing the composition of samples of calcined bauxite proppants. But such analysis could not be expected to distinguish between a calcined bauxite proppant to which one dr both dopants have been added in small quantities from a calcined bauxite proppant in which the impurities in question already were present in the source ore. In this respect, adding a dopant is not, in a physical sense, distinguishable from combining separate batches of raw ore that have differing levels of various impurities. As plaintiff argues, “there is no difference between the underlying chemistry of the subject proppants and that of a bauxite or other aluminum ore that happened to naturally contain slightly higher percentages ...” of the compounds added as dopants. Pl.’s Br. 34-35. The court notes, further, that according to common definitions cited in this Opinion, bauxite varies considerably in composition but is defined by the presence of any of various oxides or hydroxides of aluminum, which invariably are present along with a number of other minerals as impurities. In short, classification of bauxite as an “ore” under heading 2606 requires one or more aluminum compounds to be present
In summary, the court applies to this case a workable, common-sense interpretation of note 2 to chapter 26, HTSUS that does not preclude classification of the proppants under heading 2606, HTSUS. The note was intended to remove from the chapter those ores that have been subjected to certain (i.e., other than those specifically permitted) industrial processes that effect a change in the physical or chemical condition of bauxite ore, not those processes that merely make a slight change in the starting material and do not advance the condition of bauxite ore from a natural state.
Although arguing that the addition of the dopants does not preclude classification of the proppants under heading 2606, plaintiff joined in a stipulation that in the commercial extraction of aluminum metal from bauxite it is not a normal process to add the dopants at issue here. Stipulation No. 60. The stipulation in question does not alter the court’s conclusion. As mentioned previously, the EN to Chapter 26 provides that “[processes to which products of headings 26.01 to 26.17 may have been submitted include physical, physico-chemical or chemical operations, provided they are normal to the preparation of the ores for the extraction of metal.” EN, Gen. Note, chapter 26. This sentence from the EN, in referring to “physical, physico7chemical or chemical operations,” should not be construed so broadly, or in an overly-literal sense, so as to preclude the addition of the dopants in question here. For the several reasons the court has discussed, the addition of these do-pants in minor quantities does not effect a physical, physico-chemical, or chemical change to the composition of natural bauxite ore.
In opposing classification under heading 2606, defendant also argues that “[t]he proppants, in their condition as imported, are finished products; they are not used to make another product, but are used in their ‘as imported’ state for hydraulic fracturing.” Def.’s Opp’n 2. The court disagrees with the legal conclusion defendant draws as to the scope of heading 2606, HTSUS. Nothing in the terms of the heading, the section or chapter notes, or the relevant Explanatory Notes supports a conclusion that a product ready for the intended use in the condition as imported is outside the scope of the heading. To the contrary, note 2 to chapter 26 and the Explanatory Note to heading 2606 expressly contemplate the inclusion of products intended for non-metallurgical uses, imposing no condition that confines the scope of the heading to products intended for uses as intermediate products. Moreover, the proppants are combined with other materials and liquids to create fracturing fluid. Stipulation No. 36.
Defendant argues, further, that the subject proppants are produced from non-metallurgical grade bauxite and therefore, do not meet the definition of the term “ore” provided in note 2 to chapter 26.
Defendant also argues that “there are material issues of fact with respect to the tariff provisions upon which Schlumberger has the burden of proof, ie. headings 2606 and 2828,” Def.’s Br. 11, but that there are no material issues of fact with respect to defendant’s proposed classification under either headings 6909 or 3824, id. Defendant asserts that “Schlumberger has not provided information to establish the actual composition of the proppants at issue,” id. at 2, and that “[t]his lack of information is fatal to plaintiff’s case,” id. at 13. Specifically, defendant notes that Schlumber-ger did not produce the subject proppants and argues that Schlumberger is unaware of the precise chemical composition of the proppants. Id. at 2. Defendant further claims that certain specification sheets (material data safety sheets, etc.) provided by Schlumberger contain inconsistent information. id. at 2. Defendant argues, inter alia, that “documents produced by Schlumberger in discovery indicate clay is either added or present in the materials to niake proppants.” Id. at 16; see also Oral Arg. Tr. 101-106 (May 21, 2014), ECF No. 86 (conf.) (“Oral Arg. Tr.”). According to defendant, the aforementioned samples plaintiff submitted are not representative of the proppants at issue because the samples were not taken from the actual entries that are the subject of this action. Def.’s Br. 2-3.
Although plaintiff insists that clay was not added to the raw materials used to produce the subject proppants, the court does not require the resolution of this factual question in order to conclude that the subject proppants are properly classified under heading 2606. Even where there are ongoing factual disputes between parties, summary judgment may be appropriate where the resolution of those disputes is not necessary to determine the appropriate classification under potential headings. See, e.g., Dependable Packaging Solutions, Inc. v. United States,
Because there is no dispute that bauxite was used as the starting material and no dispute as to the processes performed on it to produce the proppants, the court concludes that there is no genuine issue of
Nevertheless, even were clay added as a starting material, this would not preclude classification under heading 2606. Like the addition of dopants discussed above, any addition of clay to the starting material would not advance the starting material beyond the natural condition of bauxite ore. At least one dictionary definition of “bauxite” states that various clays are commonly present as impurities in bauxite. Encyclopedia Britannica Online, available at http://www.britanniea.com/science/ bauxite (last visited July 13, 2015) (“Clay minerals ... are common impurities.”). In short, defendant’s argument that clay may have been added in the production of the proppants in question does not establish a genuine issue of material fact so as to preclude summary judgment in favor of plaintiff.
For the foregoing reasons, the court concludes that the proppants at issue in this case are described by the terms of heading 2606, HTSUS. As the court discusses below, the terms of no other heading of the HTSUS describe the merchandise at issue in this case.
F. The Proppants Are Not Described by the Terms of Any Other Heading of the HTSUS
Plaintiff argues in the alternative for classification of the proppants under heading 2828, “[ajrtificial corundum, whether or not chemically defined; aluminum oxide; aluminum hydroxide.” Heading 2828, HTSUS. Plaintiff argues that during the firing phase of production, the firing temperature was high enough such that “the naturally-occurring aluminum hydroxide phases converted to corundum.” PL’s Br. 41 (citing Donald D. Carr, Industrial Minerals and Rocks 140 (6th ed. 1994), Ex. 28 to PL’s Br.); Rebuttal Report of William M. Carty, PhD at 16 (Aug. 9, 2013), Ex. 13 to PL’s Br. The proppants do not fall within a common or commercial definition of the term “artificial corundum.” The Explanatory Note to heading 2818 states that “artificial corundum is formed by fusing aluminum oxide in an electrical furnace.” EN 28.18. The subject proppants were not formed by fusing aluminum oxide in an electrical furnace but rather through milling, pan granulation, drying, and firing. Stipulation No. 13. As the court noted above, the stipulated facts show that the subject proppants were not heated to the fusion temperature of aluminum oxide, 2,030 C. See Conf. Stipulation Nos. 30(g), 57. Nor do the proppants satisfy a definition of the term “aluminum oxide,” which, as- the Explanatory Note provides, is a chemical compound and a white powder. EN B 28.18 (explaining that aluminum ox
Each party advocates, in the alternative, a classification under heading 3824, HTSUS, a residual heading that includes “chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included.” Heading 3824, HTSUS. In opposition to defendant’s motion for summary judgment, plaintiff also suggested another alternative classification, this one under heading 6815, “[articles of stone or of other mineral substances, not elsewhere specified or included.” Heading 6815, HTSUS. Because the proppants are included under heading 2606, headings 6815 and 3824, each of which is limited to goods “not elsewhere specified or included,” must be rejected according to GRI l.
G. Disposition of the Pending Summary Judgment Motions
Within heading 2606, there is only one eight-digit subheading, and therefore this tariff provision, subheading 2606.00.00, HTSUS, for “[a]luminum ores and concentrates: Bauxite, calcined: other,” is, eo nomine, the correct classification for the imported proppants.
Defendant’s motion for summary judgment must be denied. The primary classification defendant advocates, subheading 6909.19.50, HTSUS, is precluded by GRI 1, HTSUS, because the proppants are not “ceramic wares” within the intended meaning of that term as used in heading 6909, HTSUS. Defendant’s alternate classification claim, subheading 3824.90.92, HTSUS, is incorrect because heading 3824, HTSUS is limited to goods “not elsewhere specified or included.” Heading 3824, HTSUS. Defendant’s other alternate classification
H. Denial of Remaining Motions
Also before the court are various motions related to discovery and confidentiality.
Because the court reaches classification decisions upon a conclusion that there is no genuine issue of material fact precluding the granting of the summary judgment motion plaintiff has filed with respect to classification under heading 2606, HTSUS, the court will deny all discovery motions as moot. The confidentiality motions are also moot. Regarding confidentiality, plaintiff states that “Schlumberger’s motion [to enforce the protective order] can be dismissed provided Defendant agrees not to publicly disclose documents marked as confidential. Defendant’s two motions can be dismissed as moot.” Pl.’s Br. 15 n. 1. By the terms of the protective order entered in this case, Stipulated Protective Order ¶2^) (April 24, 2012), ECF No. 21, confidential information remains protected and those portions of a document provided by a producing party that “are not confidential shall not be restricted by this Protective Order.”
III. Conclusion
For the reasons stated above, the court will grant plaintiff summary judgment under which the imported proppants are classified under subheading 2606.00.00, HTSUS, free of duty.. The court will deny defendant’s motion. All other motions will be denied as moot.
Notes
. Entry No. 231-0425653-6 was made on February 10, 2010 at the Port of Dallas, Stipulation No. 2, and Entry No. 231-0434806-9 was made on March 29, 2010 at the Port of Los Angeles/Long Beach, Stipulation No. 3.
. Because both entries of the merchandise in question occurred in 2010, all citations herein to the Harmonized Tariff Schedule of the United States ("HTSUS”) are to the 2010 version of the HTSUS.
. Although a decision of U.S. Customs and Border Protection ("Customs” or "CBP”) is presumed to be correct, see 28 U.S.C. § 2639(a)(1)(2006), the statutoiy presumption of correctness carries no force as to questions of law and, therefore, has no relevance absent a factual dispute, Goodman Mfg. L.P. v. United States,
. “Along with the headings and subheadings, which are enumerated in chapters 1 through 99 of the HTSUS (each of which has its own section and chapter notes), the HTSUS statute also contains the 'General Notes,’ the 'General Rules of Interpretation’ (‘GRI’), the ‘Additional United States Rules of Interpretation’ ('ARIs'), and various appendices for particular categories of goods.” Dependable Packaging Solutions, Inc. v. United States,
. All citations to the World Customs Organization Explanatory Notes ("ENs”) contained herein are to the 2007 version.
. In denying Schlumberger’s protests and determining classification under subheading 6909.19.50, HTSUS, Customs relied primarily on a May 21, 2007 ruling in which Customs had evaluated a classification request by Schlumberger concerning merchandise Schlumberger identified as “artificial proppants” ("NY Ruling Letter N005440”). The Tariff Classification of Artificial Proppants from China, Russia & Venezuela (May 21, 2007), available at rulings. cbp.gov/ny/2007/n005440.doc (last visited July 13, 2015) ("NY Ruling Letter N00S440’’); Dallas Entry Protest Record (“Correct classification is 6909.19.5095 per ruling N005440.”); Attach, to Los Angeles/Long Beach Entry Denial of Protest ("There was no clear proof provided that the merchandise in question, S580-2040 was not the subject of ruling N005440.”). In N.Y. Ruling Letter N005440, Customs analyzed samples of certain “artificial proppants” and concluded that those proppants were classifiable in subheading 6909.19.50, HTSUS. NY Ruling Letter N005440 at 2. In support of this position, Customs stated that:
The submitted samples consist of very fine spherical grains. Laboratory analysis has shown that both samples are composed of aluminum oxide and aluminum silicate with small amounts of other elements. The samples have the characteristics of ceramics and the hardness of each sample is less than 9 on the Mohs scale.
Id. at 1-2. A classification ruling by Customs may be accorded a "respect proportional to its 'power to persuade,’ ” based on the "thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources
. See EN, Gen. Note (A), (B), chapter 69 (applying the term "ceramic products” to products obtained from inorganic, non-metallic materials that are shaped and then fired, or "[fjrom rock, (e.g., steatite), fired after shaping.”). Because bauxite contains oxides of aluminum, it might be described as “metallic,” and it also may be described as “rock.” See “Bauxite,” Encyclopedia Britannica Online, available at http://www.britannica.com/ science/bauxite (last visited July 13, 2015) ("[B]auxite, rock largely composed of a mixture of hydrous aluminum oxides.”).
. The Oxford English Dictionary defines "ware” as: “A collective term for: Articles of merchandise or manufacture; the things which a merchant tradesman or peddler has to sell; goods, commodities.” "Ware” (n. 3), Oxford English Dictionary Online (June 2015), available at http://www.oed.com/view/Entry/ 225693?rskey=CPYR17&result=3 (last visited July 13, 2015). Webster's Dictionary defines “ware,” inter alia, as: "1 a: manufactured articles, products of art or craft, or farm produce offered for sale: b: an item offered for sale: an article of merchandise ... 2: goods, commodities, manufacturers, or produce of a specific class or kind <coopers’ [ware]> chousehold [ware]> <mahogany [ware]> — usu. used in combination chard-ware > < silverware > < tinware > < glassware >” “Ware” (n.), Webster's Third New Int'l Dictionary, Unabridged 2576 (3d ed. 2002) (emphasis added). Interestingly, a definition of "ware” included in the latter source is: "pottery, dishes, or other items of fired clay.” Id. at 2(d).
. The Oxford English Dictionary defines an "article” as: "A particular material thing, esp. one belonging to a specified class; a commodity; an item of goods or property.” “Article” (n. 14), Oxford English Dictionary Online (June 2015), available at http://www. oed.com/view/Entry/11179?rskey=Yl Uo6& result=l# eid (last visited July 13, 2015).
. Defendant asserts that the samples are not representative of the proppants at issue because the samples were not taken from the actual entries that are the subject of this action. Mem. in Supp. of Def.’s Mot. for Summary J. 2-3 (Nov. 22, 2013), ECF Nos. 66 (conf.), 67 (public) ("Def.’s Br.”). Neither Customs nor Schlumberger retained samples from the 20/40 entry or the 40/70 entry. Stipulation No. 58. Nevertheless, the samples provided by plaintiff would be admissible at trial, and there is no dispute as to the bulk, granular nature of the merchandise or the size of the granules, as is evident from the parties’ stipulations.
. A "vitrified” ceramic is one that is "converted into glass or a glassy substance by exposure to heat.” "Vitrified” (adj.), Oxford English Dictionary Online (June 2015), available at http://www.oed.com/view/Entry/ 224103 (last visited July 13, 2015); see also "Vitrify” (v.), Webster’s Third New Int'l Dictionary, Unabridged 2559 (3d ed. 2002) ("to change into glass or a glassy substance by heat and fusion: make vitreous; esp.: to produce in (a ceramic ware) enough glassy phase or close crystallization by high firing to make nonporous....”). The proppants have been fired at a temperature sufficient to cause cal-cination of the granules, but, as an examination of the samples reveals, have not been converted to glass or a glassy substance.
. EN 69.09 provides that "[t]he heading covers in particular:"
(1) Laboratory wares (e.g., for research or industrial use) such as crucibles and crucible lids, evaporating dishes, combustion boats, cupels; mortars and pestles; spoons for acids, spatulas; supports for filters and catalysts; filter plates, .tubes, candles, cones, funnels, etc.; water-baths; beakers, graduated vessels (other than graduated kitchen measures); laboratory dishes, mercury troughs; small tubes (e.g., combustion tubes, including analysis tubes for estimation of carbon, sulphur, etc.).
(2)Ceramic wares for other technical uses, such as pumps, valves; retorts, vats, chemical baths and other static containers with single or double walls (e.g., for electroplating, acid storage); taps for acids; coils, fractionating or distillation coils and columns, Raschig rings for petroleum fractionating apparatus; grinding apparatus and balls, etc., for grinding mills; thread guides for textile machinery and dies for extruding man-made textiles; plates, sticks, tips and the like, for tools.
(3) Containers of the kinds used for the commercial transport or packing of goods, e.g., large containers, carboys, etc., for the transport of acids and other chemical products; flagons, jars and pots, for foodstuffs (jam, condiments, meat pastes, liqueurs, etc.), for pharmaceutical products or cosmetics (pomades, ointments, creams, etc.), for inks, etc.
(4) Troughs, tubs and similar containers of the type used in agriculture.
EN 69.09 (emphasis in original).
. To "shape” is “to give a particular or proper form to by or as if by molding or modeling from an undifferentiated mass” or “to give definite or finished shape to especially by altering a prior shape.” "Shape” (v.l, 2), Webster’s Third New Int’l Dictionary, Unabridged 2087 (3d ed. 2002).
. Steatite is "[a] massive variety of talc, commonly of a grey or greyish green colour, with an unctuous or soapy feel; soap-stone.” "Steatite” (n.), Oxford English Dictionary Online (June 2015), available at http://www.oed. com/view/Entry/189507?Redirectedfrom= Steatite (last visited July 13, 2015). Steatite is also described as “[a] mixture of talc, clay, and alkaline-earth oxides” that is chiefly used "as a ceramic insulator in electronic devices." "Steatite,” Hawley’s Condensed Chem. Dictionary 1043 (14th ed. 2001) (Richard J. Lewis Sr. Ed.).
.In concluding that the calcined bauxite proppants at issue here are classified under . heading 2606, HTSUS, the court reaches a result consistent with an analysis published by the U.S. International Trade Commission. That analysis, although not binding on the court, is the product of an authoritative source with responsibilities pertaining to tariff matters (including the HTSUS and international responsibilities pertaining to the International Harmonized Commodity Description and Coding System). See Omnibus Trade and Competitiveness Act of 1988 § 1205, 19 U.S.C. § 3005 (2006). The Commission’s analysis of calcined bauxite proppants from Australia determined classification under heading 2606, HTSUS. Int’l Trade Comm’n, Calcined Bauxite Proppants From Australia Determination of the Comm’n in Investigation No. 731-TA-411 (Final) Under the Tariff Act of 1930, Together With the Info. Obtained in the Investigation at A-13, USITC Inv. No. 731-TA-411 (Final), March 1989 ("ITC Investigation on Calcined Bauxite Proppants ").
. Arguing that the samples were not collected from the samples at issue, defendant asserts that plaintiff has not proved the composition of the proppants. Def.’s Br. 2. Nevertheless, defendant joins in stipulations that the subject proppants were produced from bauxite. Stipulation Nos. 12, 54.
. The term "alumina” (A1203) refers to "[a] white highly heat-resistant solid, aluminium oxide, which is a major constituent of many rocks, esp. clays, and occurs crystallized as corundum, sapphire, etc.” "Alumina” (n.), Oxford English Dictionary Online (June 2015), available at http://www.oed.com/view/Entry/ 5877?redirectedFrom=Alumina (last visited July 13, 2015).
. The identity of the dopants is on the record of this proceeding by means of confidential stipulations but is not revealed in this Opinion due to requests for proprietary treatment by the parties.
. Additionally, a “dopant” is defined as "an impurity added usually in minute amounts to a pure substance to alter its properties.” "Dopant” (n.), Webster’s Third New Int’l Dictionary Online, Unabridged, available at http://unabridged.merriam-webster.com/ unabridged/dopant (last visited July 13, 2015).
. The parties stipulate as follows:
Bauxite from China is composed chiefly of monohydrate-type bauxite, mainly diaspora [sic ], with significant amounts of boehmite. Virtually all the Chinese deposits contain or are closely associated with kaolinitic flint clay, which means that they have high reactive silica (aluminosilicate) levels. In fact, commercial definitions of what is actually termed bauxite differ between China and the rest of the world, with Chinese diasporic high-alumina clay being classified as "equivalent” to bauxite. China is noted for its nonmetallurgical-grade bauxite production....
. In its motion for summary judgment, defendant argues in the alternative for classification under subheading 3824.90.92, HTSUS, subject to duty at 5% ad valorem, on the premise that the proppants are not “mixtures of inorganic compounds” as is required for classification in subheading 3824.90.39, HTSUS, free of duly, plaintiff's proposed alternative classification. Def.’s Br. 29-30. Defendant claims that "[t]he proppants do not satisfy the definition of 'mixture' because the chemical components do not retain their identities and are not able to be separated after firing.” Id. at 29. The term "mixtures of inorganic compounds” is used in subheading 3824.90.39 in a chemical context in that it uses both the term “mixtures” and the term "inorganic chemical compounds.” However, the novel definition of "mixtures” advocated by defendant is contrary to definitions of the term commonly understood in chemistry. See, e.g., "Mixture,” Hawley’s Condensed Chem. Dictionary 754 (14th ed. 2001) (Richard J. Lewis Sr. Ed.) (defining a mixture as “[a] heterogeneous association of substances that cannot be represented by a chemical formula,” explaining that “[i]ts components may or may not be uniformly dispersed and can usually be separated by mechanical means,” and providing as examples of artificial mixtures glass, paint, cement, plastics, and cermets).
. A ten-digit statistical breakout (subheading 2606.00.0060, HTSUS), is provided for calcined, non-refractory grade bauxite, a description to which the subject goods conform, as stated above. Subheading 2606.00.0060, HTSUS.
. Schlumberger Tech. Corp.'s Mot. to Maintain Conf. Designations on Docs, it Produced (Mar. 20, 2013), ECF No. 29; Def.’s Mot. to Compel (Apr. 12, 2013), ECF Nos. 32 (conf.), 33 (public); Def.'s Mot. for a Stay of Completion of Disc. Pending Resolution of the Mot. to Compel (Apr. 12, 2013), ECF No. 34; Schlumberger Tech. Corp.'s Mot. for Leave to File its Reply to Def.'s Opp’n to PL's Mot. to Maintain Conf. Designations on Docs, it Produced (Apr. 17, 2013), ECF No. 35; Def.’s Consent Mot. for Oral Arg. (May 13, 2013), ECF No. 41.