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HQ 956975




March 17, 1995

CLA-2 CO:R:C:F 956975 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3815.19.0000

District Director
U.S. Customs Service
1 East Bay Street
Savannah, Georgia 31401

RE: Application for Further Review of Protest No. 1703-4-100086, dated July 20, 1994 and liquidated April 22, 1994; microspheres; kaolin; zeolite

Dear Sir:

This is a decision on a protest filed July 22, 1994, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of goods entered during November, 1993, and liquidated on April 22, 1994.

FACTS:

The protestant entered goods invoiced as "microspheres" under subheading 9801.00.1098, HTSUSA, a provision for "Products of the U.S. when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad: Other: Other," to be entered free of duty.

By your letter dated January 5, 1994, the protestant was requested to substantiate the claim of American manufacture. Receiving no substantiation, a Notice of Action dated April 6, 1994, alerted the protestant to reclassification of the goods to subheading 7018.20.0000, HTSUSA, and intent to collect duties at the rate of 17.5 percent ad valorem. Customs did in fact thereafter reclassify the goods under subheading 7018.20.0000, HTSUSA, a provision for glass microspheres not exceeding one mm in diameter. Duty was assessed at the column one general rate of 17.5 percent ad valorem.

In Customs Savannah Laboratory Report (Savannah Lab) dated July 8, 1994, it was stated that, based upon Customs analysis of a sample and information provided by the protestant in lieu of substantiation of the claim of American manufacture, the subject goods were kaolin clay, not containing nickel or precious metal. A noted amorphous structure of the material had been imparted by unspecified processing; such material, i.e., amorphous kaolin clay not containing nickel or precious metal, was recognized in the technical literature as being used as a catalyst.

You now are of the opinion, based upon the Savannah Lab analysis, that the goods are classifiable under subheading 2507.00.0000, HTSUSA, a provision for kaolin and other kaolinic clays, whether or not calcined, having a corresponding column 1 general rate of duty of 32.5 cents/ton.

The protestant now seeks reclassification to subheading 3815.19.0000, HTSUSA, a provision for supported catalysts, other, to be entered free of duty.

Customs New York Laboratory Report (NY Lab) of October 27, 1994, identified the goods as a zeolite type of catalyst, not glass microspheres.

"Kaolin" is an aluminum silicate remarked to be the most refractory of all clays. Its main constituent is kaolinite, a hydrated silicate of aluminum. "Zeolite" is a natural hydrated silicate of aluminum and either sodium or calcium or both. There are substances recognized as "artificial zeolites" that are irrelevant to this decision.

"Calcination" is the heating of a solid to a temperature below its melting point to bring about a state of thermal decomposition or a phase transition other than melting, resulting in thermal dissociation, polymorphic phase transition or thermal recrystallization. The Condensed Chemical Dictionary, Ninth Edition (Van Nostrand Reinhold Company, 1977), at 148.

The appellation "amorphous" characterizes a noncrystalline structure; e.g., carbon derived by thermal decomposition or partial combustion of coal, petroleum or wood is amorphous (coke, carbon black or charcoal, respectively). Id., at 54-55.

ISSUE:

Whether amorphous kaolinic (zeolite type) clay microspheres are classifiable under the HTSUSA as a kaolinic clay, whether or not calcined, or as a supported catalyst.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification 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.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading; although neither binding upon the contracting parties to the Harmonized System Convention nor considered to be dispositive interpretations, they should be consulted on the proper scope of the System.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.

Based upon the NY Lab analysis, we find that heading 7018 does not describe the goods.

Legal Note 1, Chapter 25, HTSUSA, provides that the headings of the chapter cover "only products which are in the crude state or which have been washed [including chemically], crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading." Specific headings may set out conditions or processes which are allowable in addition to those generally allowed by the chapter note. See General Explanatory Note to Chapter 25.

Heading 2507, HTSUSA, "Kaolin and other kaolinic clays, whether or not calcined," covers, in pertinent part, three classes or kinds of kaolinic clays: crude kaolinic clays, kaolinic clays that have been calcined and kaolinic clays that have been subjected to mechanical or physical processes allowed by Legal Note 1, Chapter 25, HTSUSA.

The Savannah Lab did not identify the goods as having been calcined, but did remark that the material had "been processed to give it an amorphous structure." Clearly, the substance is not "crude" and is, therefore, "one-third" disqualified from classification under the heading. Apparently either a calcined or amorphous state may be achieved through thermal decomposition. Had the goods been calcined, we believe that not either but both the Savannah Lab and the NY Lab would have noted so in their respective reports. We find, therefore, that the substance was not calcined and is, therefore, "two-thirds" disqualified from classification under the heading. The amorphous material surely was subjected to some process, however, possibly thermal decomposition. We do not know; we are comfortable in assuming, however, that the substance had not "been washed [including chemically], crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization)" generally permitted by Legal Note 1, supra. Whatever the processing, it was "processing beyond that mentioned in . . . heading [2708]." Id. We find, therefore, that the substance is fully disqualified from classification under the heading.

Heading 3815 covers preparations which initiate or accelerate certain chemical processes. See EN 38.15. Although the NY Lab fails to particularly identify the support in the preparation, subheading 3815.19.0000, HTSUSA, is noted. This notation, together with the Savannah Lab notation that the technical literature identifies the substance as being used as a catalyst, leads us to conclude that subheading 3815.19.0000, HTSUSA, describes the goods.

HOLDING:

The protest should be allowed.

Amorphous kaolinic (zeolite type) clay microspheres are classifiable under subheading 3815.19.0000, HTSUSA, a provision for "Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Supported catalysts: Other."

Goods classified under the foregoing provision in 1993 were entitled to be entered free of duty.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1992, Subject: Revised Protest Directive, this decision should be mailed 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 Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information and other public access channels.

Sincerely,

John Durant, Director Commercial Rulings Division

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