CLA-2 CO:R:C:M 955742 KCC
District Director
U.S. Customs Service
300 South Ferry Street
Entry Team 3, Room 1015
Terminal Island, California 90731
RE: Protest 2704-93-103276; micro silica sand; EN 26.20;
2621.00.00; EN 26.21; 6815.99.44; EN 68.15
Dear District Director:
This is regards to Protest 2704-93-103276, which pertains to
the tariff classification of micro silica sand under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The product at issue is micro silica sand, D-124 Litefil,
which is a lightweight mineral filler used as a partial replacement
of heavyweight fillers, i.e., replacement of heavyweight aggregates
used in hydraulic cement based slurries for oil/gas well drilling.
Upon importation, the entries of the micro silica sand were
liquidated on August 13, 1993, under subheading 6815.99.40, HTSUS,
as other articles of stone or of other mineral substances, not
elsewhere specified or included.
This determination was based on Customs Laboratory report #7-
93-21132-001 dated July 9, 1993, which found that "[t]he sample,
an off-white powder identified as "D-124 Litefil", is composed of
mineral substances predominantly of silica. In our opinion, it is
further processed and does not have the characteristics of natural
sand."
In a protest timely filed on October 21, 1993, the protestant
contends that the micro silica sand is properly classified under
subheading 2621.00.00, HTSUS, as other slag and ash. The
protestant states that its product is not a manufactured article,
but is part of the composition of fly ash, a waste material derived
from the combustion of coal at power stations. The power station
disposes of the flyash by sluicing it into an ash storage dam. The
lightweight portion of the ash separates from the heavyweight
portion by floating to the surface of the water in the ash dam.
The lightweight ash is then extracted from the ash dam, allowed to
de-water, dried, screened and packaged for shipment. The
protestant states that the chemical composition of its product is
55% silica, 43% alumina and less than 1% iron.
The competing subheadings are as follows:
2621.00.00 Other slag and ash, including seaweed ash (kelp).
6815.99.40 Articles of stone or of other mineral substances
(including articles of peat), not elsewhere
specified or included...Other
articles..Other...Other.
ISSUE:
What is the tariff classification of the micro silica sand
under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed
by the General Rules of Interpretation (GRI's). GRI 1, HTSUS,
states, in part, that "for legal purposes, classification shall be
determined according to terms of the headings and any relative
section or chapter notes...."
Upon further examination of the micro silica sand and the
information submitted by the protestant, we are of the opinion that
the micro silica sand is classified under subheading 2620.90.90,
HTSUS, which provides for "Ash and residues (other than from the
manufacture of iron or steel) containing metals or metal
compounds...Other...Materials not provided for elsewhere in this
heading...Other."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be utilized. The ENs, although not dispositive, are to be used
to determine the proper interpretation of the HTSUS. See, T.D. 89-
80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 26.20 (pg.
210), states that:
This heading covers ash and residues (other than those of
heading 26.18 or 26.19) which contain metal or metal
compounds, and which are of a kind used in industry either
for the extraction of metal or as a basis for the manufacture
of chemical compounds of metals. They result from the
treatment of ores or intermediate metallurgical products (such
as mattes) or from electrolytic, chemical or other processes
which do not involve the mechanical working of metal (emphasis
in original).
In this case, the micro silica sand is a residue containing
metal compounds, i.e., aluminum oxides, which is obtained from
burning coal, not the manufacture of iron or steel. The micro
silica sand has been advanced in value or condition by a flotation
separation process and by the subsequent drying and screening.
Therefore, it is classified as other ash and residues containing
metals or metal compounds, not from the manufacture of iron or
steel under subheading 2620.90.90, HTSUS.
The protestant contends that the micro silica sand is
classifiable under subheading 2621.00.00, HTSUS, as other slag and
ash. EN 26.21 (pg. 211), states that heading 2621, HTSUS,
"...covers slag and ash not falling in heading 26.18, 26.19 or
26.20, derived from the working of ores or from metallurgical
processes, as well as those derived from any other material or
process (emphasis in original)." Furthermore, EN 26.21 states that
the products covered by heading 2621, HTSUS, include "[a]sh and
clinker of mineral origin (e.g., coal, lignite or pet ashes)." As
stated previously, the micro silica sand is properly classified
under heading 2620, HTSUS. Therefore, the micro silica sand is
excluded from classification under subheading 2621.00.00, HTSUS,
as other slag and ash.
Subheading 6815.99.44, HTSUS, provides for other articles of
stone or of other mineral substances, not elsewhere specified or
included. EN 68.15 (pg. 909), states that "[t]his heading covers
articles of stone or of other mineral substances, not covered by
the earlier headings of this Chapter and not included elsewhere in
the Nomenclature...(emphasis in original)." As stated previously,
the micro silica sand is classified elsewhere in the Nomenclature,
subheading 2620.90.90, HTSUS. Therefore, it is not classifiable
under subheading 6815.99.44, HTSUS.
HOLDING:
The micro silica sand, D-124 Litefil, is classified under
subheading 2620.90.90, HTSUS, as other ash and residues containing
metals or metal compounds, not from the manufacture of iron or
steel.
Since the rate of duty under the classification indicated
above is more than the liquidated rate, the protest should be
DENIED. In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed, with the Customs Form
19, by your office to the protestant no later than 60 days from the
date of this letter. Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the
decision. Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Lexis,
Freedom of Information Act, and other public access channels.
Sincerely,
John Durant, Director