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HQ 955742


April 4, 1994

CLA-2 CO:R:C:M 955742 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2620.90.90

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

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