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HQ 087995


May 6, 1991

CLA-2 CO:R:C:F RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2842.10.0000

District Director of Customs
U.S. Customs Service
909 First Avenue, Room 2039
Seattle, WA 98174

RE: Decision on Application for Further Review of Protest No. 3004-90-000070, on the tariff classification of sodium aluminosilicate

Dear Sir:

This is a decision on an application for further review of a protest timely filed on behalf of Diachem Industries Ltd., on April 4, 1990, against your decision in the tariff classification of sodium aluminosilicate, which was entered under entry number 211- 0013610-6 on November 31, 1989, and liquidated on January 12, 1990, and entered under entry number 211-0011633-0 on November 24, 1989, and liquidated on March 2, 1990.

FACTS:

The product is the chemical "sodium aluminosilicate" (sodium silicoaluminate) which is known commercially as "white carbon raw material." It consists of a series of hydrated sodium aluminum silicates having a Na2O:A12O3:SiO2 mole ratio of approximately 1:1:13.2. See Hawley's Condensed Chemical Dictionary 1051 (1987). Sodium aluminosilicate is a double or complex salt and a double or complex silicate. See Explanatory Note 28.42 to the Harmonized Commodity Description and Coding System. The product is imported in a fine white amorphous powder.

Customs classified the instant product under heading 2842 as a double or complex silicate. The importer contests this classification. Instead, the importer contends that the product should be classified under heading 2839 as merely a silicate.

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff (i.e., (1) merchandise is to be classified under the four-digit heading that most specifically describes the merchandise; (2) only four-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a four-digit heading before consideration is given to classification under a subheading within this four-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the other GRIs.

GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same four-digit heading under the subheading that most specifically describes or identifies the merchandise.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (hereinafter "Harmonized System") represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89- 90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.

A review of the chapters in the schedule reveals that the instant product may be potentially classified in chapter 28. Within this chapter, the product may be potentially classified in sub-chapter V under headings providing for silicates or other salts, i.e., 2839 or 2842. Sub-chapter V covers "salts and peroxysalts, of inorganic acids and metals." Guidance concerning the coverage of this sub-chapter can be found in the general notes to the Explanatory Notes to sub-chapter V. With regard to "double or complex salts," these notes state, in part, that:

Certain double or complex salts are specifically referred to in headings 28.26 to 28.41; for example, fluorosilicates, fluoroborates and other complex fluorine salts (heading 28.26), alums (heading 28.33), complex cyanides (heading 28.37). As regards double or complex salts not so specified, see the Explanatory Notes to heading 28.42.

Heading 2842 provides for "other salts of inorganic acids or peroxoacids, excluding azides." With respect to double or complex salts, the Explanatory Notes to heading 2842 state, in part, that:

"[t]his group covers double or complex salts other than those specifically included elsewhere. The principal double complex salts classified in this heading include:...double or complex silicates. Aluminosilicates are used in the glass industry and as an insulator, etc....

See Explanatory Note (II) Double or Complex Salts, (K) Double or Complex Silicates, Heading 28.42 to the Harmonized Commodity Description and Coding System.

Of special significance to the instant classification analysis is note 5 to chapter 28:

Headings 2826 to 2842 apply only to metal or ammonium salts or peroxysalts. Except where the context otherwise requires, double or complex salts are to be classified in heading 2842.

In light of the above, it is clear that unless a double or complex salt is specifically referred to in the terms of headings 2826 to 2841, then it is to be classified under heading 2842.

The alternative heading to 2842 under which the instant product may be potentially classified is heading 2839. This heading provides for "silicates" and "commercial alkali metal silicates." Nowhere in the terms of this heading is there a specific reference to the double or complex salt "sodium aluminosilicate." Moreover, nowhere in the Explanatory Notes to heading 2839 is sodium aluminosilicate listed or identified as being properly classified under this heading. See Explanatory Notes to Heading 28.39 to the Harmonized Commodity Description and Coding System. Therefore, pursuant to the above-discussed chapter note and Explanatory Notes, there can be no doubt that the instant product is properly classified under heading 2842 rather than under heading 2839.

HOLDING:

The above-described product is properly classified under subheading 2842.10.0000, HTSUSA, which provides for other salts of inorganic acids or peroxoacids, excluding azides, double or complex silicates. The general rate of duty is 3.7 percent ad valorem.

This protest should be denied in full. A copy of this decision should be furnished to the protestant with the Customs' Form 19 notice of action.

Sincerely,

John Durant, Director

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