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HQ 962917




December 27, 2001

CLA-2 RR:CR:GC 962917 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.39

Port Director c/o Assistant Port Director, Trade Operations U.S. Customs Service
200 Granby Street, Suite 839
Norfolk, VA 23510

RE: Protests 1401-99-100061 and -100062; Siral 30™ and Siral 40™ alumina silica products

Dear Port Director:

This is our decision regarding protests 1401-99-100061 and -100062, concerning your classification of Siral 30™ and Siral 40™ alumina silica products under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise at issue consists of Siral 30™ and Siral 40™ alumina silica products. The protestant asserts that these products are composed primarily of alumina (Al203) and silica (SiO2) in a defined ratio and also contain 19 to 25% volatile compounds, which are described as “a complex, non-homogeneous mixture of hydrated alumina and silica species.” Siral 30™ consists of 30% silica while Siral 40™ consists of 40% silica. According to the protestant, Siral 30™ and Siral 40™ are used as follows:

The SIRAL materials are used as “carriers” or “bases” upon which precious metal and other reacting agents are impregnated to create catalysts that will cause a desired chemical reaction, such as molecule “cracking,” when placed in contact with crude oil, chemicals, and related products.

The Customs Laboratory performed two analyses of the substances under
consideration. Customs Laboratory Report #4-1998-30172-001, dated April 7, 1998, concludes that “the sample, white colored amorphous ground powder, is composed of aluminosilicate” and states that “in our opinion, the sample is glass.” A supplemental report (#NO-2000-0440, dated May 5, 2001) made the following findings:

The following three samples were tested:

1. Siral 30™, a fine free flowing white powder.

2. Siral 40™, a fine free flowing white powder

3. SV-4-98-30172, a fine free flowing white powder.

All were partially amorphous with very little crystallinity visible under standard X-ray diffraction conditions. But upon closer examination by XRD with small steps and longer detection times, all three samples revealed five (5) broad peaks that matched synthetic boehmite, a hydrated alumina ALO(OH). FTIR was used to confirm the presence of O-H bonding and Si-O bonding. All three samples contain alumina, silica, and synthetic boehmite, ALO(OH).

In telephone conversations with members of this office, the Customs Laboratory elaborated upon its findings and confirmed that the conclusions of the supplemental report indicate that the substances are not glass (or glass frit), but rather are inorganic chemical compounds.

The substances were entered on various dates in 1998 and all entries were liquidated on February 12, 1999. The protest was filed on May 13, 1999.

ISSUE:

Are Siral 30™ and Siral 40™ “glass frit and other glass” of heading 3207, HTSUS?

LAW AND ANALYSIS:

Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. §1514 (c)(3)(A)) and the matters protested are protestable (see 19 U.S.C. §1514 (a)(2) and (5)).

Merchandise imported into the United States is classified under the HTSUS. 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 that requires
otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. Further, only those subheadings at the same level of indentation are comparable.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The General Explanatory Notes to Chapter 70 provide, in regard to the classification of glass under the HTSUS, as follows:

This Chapter covers glass in all forms and articles of glass (other than goods excluded by Note 1 to this Chapter or covered more specifically by other headings of the Nomenclature).

Glass (except fused quartz and other fused silica referred to below) is a fused homogeneous mixture, in varying proportions, of an alkali silicate (of sodium or potassium) with one or more silicates of calcium and lead, and accessorily of barium, aluminium, manganese, magnesium, etc.

Throughout the tariff schedule, the expression "glass" includes fused quartz and other fused silica. Note 5, Chapter 70, HTSUS. Despite the conclusions of the initial laboratory report, we do not consider classification under Chapter 70 (which provides for articles of glass) because Note 1 to Chapter 70 excludes "goods of heading 3207 (for example, vitrifiable enamels and glazes, glass frit, other glass in the form of powder, granules or flakes).” The ENs to Chapter 70 contain an identical provision.

The HTSUS provisions under consideration are the following:

3207 Prepared pigments, prepared opacifiers and prepared colors, vitrifiable enamels and glazes, engobes (slips), liquid lustres and similar preparations, of a kind used in the ceramic, enamelling or glass industry; glass frit and other glass, in the form of powder, granules or flakes:

3207.40 Glass frit and other glass, in the form of powder, granules or flakes: 3207.40.10 Ground or pulverized
3207.40.50 Other.
3824 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; residual products of the chemical or allied industries, not elsewhere specified or included: Other:
Other:
3824.90 Mixtures of two or more inorganic compounds: 3824.90.39 Other.

The first clause of heading 3207, HTSUS, is limited to merchandise “of a kind used in the ceramic, enamelling or glass industry.” Siral products are used in the petrochemical industry, thus the first clause of heading 3207, HTSUS, excludes these goods from classification in the heading because of the use of the substances. Accordingly, these products are classified under heading 3207, HTSUS, only if they are “glass frit and other glass, in the form of powder, granules or flakes.” The protestant puts forth the following definition of “glass” found in Webster’s Third New International Dictionary:

An amorphous inorganic usu. transparent or translucent substance consisting typically of a mixture of silicates or sometimes borates or phosphates formed by fusion of sand or some other form of silica or by fusion of oxides of boron or phosphorous with a flux (as soda, potash) and a stabilizer (as lime, alumina) and sometimes metallic oxides or other coloring agents so that a mass is produced that cools to a rigid condition without crystallization and that may be blown, cast, pressed, rolled, drawn, or cut into various forms.

“Glass” is similarly defined in Van Nostrand’s Scientific Encyclopedia, 5th edition, as follows:

[A]n inorganic product of fusion which has cooled to a rigid solid without undergoing crystallization. It is a solidThe chemical composition and corresponding properties may vary over a wide range. It is much like other solid materials, and yet it is unique. Its uniqueness becomes obvious when it is examined on a submicroscopic level. Most solids have regular, orderly patterns for the arrangement of atoms, molecules and ions, but glassy materials are highly disordered. There is some short-range order in glass, but beyond one or two atoms or ions the ordering may be described as random. Thus, on a submicroscopic basis, glassy solids look more like liquids than solids.

*** Glasses, glazes of pottery, enamels on steel, obsidianite, fused quartz ware, and slags are all formed by rapidly cooling a previously molten mass without allowing sufficient time for crystallization to occur during the cooling process (undercooling). The viscosity characterizing liquids is absent, and the material appears to be solid.

Thus, according to these definitions, glass is not characterized by a specific composition but rather can be any of several materials produced through fusion (melting) which have the rigidity/viscosity of a solid and the uncrystallized, disordered submicroscopic structure of a liquid.

Here, the protestant states that “the compounds are not produced by fusion.” (p. 3 of protestant’s submission entitled “Section II – Detailed Reasons for Protest”). Further, protestant states that “approximately 40 to 50 percent by weight of the materials exist as the hydrated alumina species pseudoboehmite, AlOOH, in a crystalline phase.” (p. 3 “Section II – detailed Reasons for Protest”).

Heading 3824, HTSUS, provides for, among other things, chemical compounds not elsewhere specified or included. The ENs to heading 3824 provide, in pertinent part that:

The chemical products classified here are therefore products whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared directly. The preparations classified here may be either wholly or partly of chemical products (this is generally the case) or wholly of natural constituents (see, for example, paragraph (23) below).

According to the protestant, the substances before us are unique, patented substances that are used in the petrochemical industry. Pseudoboehmite (synthetic boehmite per the May 5, 2001 lab report) is not specifically provided for within the HTSUS. Upon consideration of the uncontroverted evidence concerning the manufacture and use of the substances, the HTSUS provisions and the May 5, 2001, lab report, we conclude that the substances are classifiable under heading 3824, HTSUS.

HOLDING:

Siral 30™ and Siral 40™ alumina silica products, which consist primarily of alumina (Al203) and silica (SiO2), are classifiable under subheading 3824.90.39, HTSUS, which provides for: 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; residual products of the chemical or allied industries, not elsewhere specified or included: other: other: mixtures of two or more inorganic compounds: other.

The protest should be GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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