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HQ H003743




August 6, 2007

CLA-2 OT:RR:CTF:TCM H003743 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2621.90.0000

Mr. Greg Koneski
Randy International Ltd.
1031 W. Manchester Blvd. #D
Inglewood, CA 90301

RE: Revocation of Headquarters Ruling Letter (HQ) 955742, dated April 7, 1994; Classification of micro silica sand.

Dear Mr. Koneski:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered Headquarters Ruling Letter (HQ) 955742, issued to you on behalf of your client, Microcell Australia, on April 7, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of micro silica sand. The micro silica sand was classified under heading 2620, HTSUS, which provided for “[a]sh and residues (other than from the manufacture of iron or steel) containing metals or metal compounds.”

Heading 2620 in the 2007 HTSUS provides for “Slag, ash and residues (other than from the manufacture of iron or steel), containing arsenic, metals or their compounds.” We have reviewed that ruling and found it to be in error. Therefore, this ruling revokes HQ 955742.

HQ 955742 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have entered the U.S. and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, CBP Regulations (19 CFR 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ 955742 when notice of denial of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).

However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS BULLETIN. This revocation will not affect the entries which were the subject of Protest 2704-93-103276, but will be applicable to any unliquidated entries, or future importations of similar merchandise 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN, unless an earlier date is requested pursuant to 19 CFR 177.12(e)(2)(ii).

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on June 13, 2007, in Volume 41, Number 25, of the CUSTOMS BULLETIN. CBP received no comments in response to the notice.

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. It is a by-product of fly ash, a waste material derived from the combustion of coal at power stations. The power station disposes of the fly ash 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 chemical composition of the micro silica sand is 55% silica, 43% alumina and less than 1% iron.

ISSUE:

Whether the micro silica sand is classified in heading 2620, HTSUS, as “Slag, ash and residues (other than from the manufacture of iron or steel), containing arsenic, metals or their compounds”, or in heading 2621, HTSUS, as “Other slag and ash, including seaweed ash (kelp).”

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the HTSUS at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 2620, HTSUS, provides for “Slag, ash and residues (other than from the manufacture of steel or iron), containing arsenic, metals or their compounds.”

The EN to heading 2620, HTSUS, provide in relevant part:

This heading covers slag, ash and residues (other than those of heading 26.18, 26.19 or 71.12) which containing (sic) metals, arsenic (whether or not containing metals), their compounds, and which are of a kind used in industry either for the extraction of arsenic or metals or as a basis for the manufacture of their chemical compounds. 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.

The micro silica sand contains metals, namely aluminum oxides. However, the micro silica sand is not of a kind used in industry for the extraction of arsenic, metals or as a basis for the manufacture of chemical compounds. Rather, it is used as a filler in cement or as an extender for plastic compounds. Moreover, it does not 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. Accordingly, the micro silica sand cannot be classified in heading 2620, HTSUS.

Heading 2621, HTSUS, provides for among other things, “Other slag and ash, including seaweed ash (kelp).”

The EN to heading 2621, HTSUS, provides in relevant part:

This heading 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. Although many of the products are used as fertilisers they are classified here and not in Chapter 31 (except in the case of basic slag).

The products covered include:

(1) Ash and clinker of mineral origin produced primarily from burning coal, lignite, peat or oil in utility boilers. Its principal uses are as a raw material for cement manufacture, as a supplement to cement in concrete, in mine backfill, as a mineral filler in plastics and paints, as a lightweight aggregate in building block manufacture and in civil engineering structures such as embankments, highway ramps and bridge abutments. It includes:

(a) Fly ash - finely divided particles entrained in furnace flue gases and removed from the gas stream by bag or electrostatic filters;

(b) Bottom ash - more coarse ash removed by settlement from the gas stream immediately after leaving the furnace;

(c) Boiler slag - coarse residues removed from the bottom of the furnace;

(d) Fluidised bed combustor ash (FBC-ash) - inorganic residues from burning coal or oil in a fluidised bed of limestone or of dolomite.

The micro silica sand is derived from fly ash, a waste material derived from the combustion of coal at power stations. The micro silica sand is then extracted from the ash dam, allowed to de-water, dried, screened and packaged for shipment. The EN to heading 2621, HTSUS, explicitly states that the products of this heading are of, among other products, mineral origin, e.g. coal. Accordingly, the micro silica sand is classified in heading 2621, HTSUS.

HOLDING:

The micro silica sand is classified in heading 2621, HTSUS. It is provided for in subheading 2621.90.0000, HTSUS, which provides for “Other slag and ash, including seaweed ash (kelp); ash and residues from the incineration of municipal waste: Other.” The general column one rate of duty is free.

EFFECT ON OTHER RULINGS:

HQ 955742 is hereby revoked.

In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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