CLA-2 CO:R:C:F RFC
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