CLA-2 R:C:F 957436 EAB
District Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, California 90731
Re: Application for Further Review of Protest Number 2704-4-102861, dated October 25, 1994 and liquidated August 24, 1994; calcium aluminum silicate; siloxane; silicones
Dear Sir:
This is a decision on a protest filed October 25, 1994, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise entered in 1994 and liquidated on August 24, 1994.
FACTS:
The protestant entered the merchandise under subheading 3910.00.00, HTSUSA, a provision for "Silicones in primary forms." Merchandise entered in 1994 under this provision was entitled to be liquidated free of duty.
Customs reclassified the merchandise under subheading 3823.90.2700, HTSUSA, a provision for, inter alia, residual products of the chemical or allied industries, not elsewhere specified or included, mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: other. Duty was assessed at the rate of 3.7 cents/kilogram plus 13.6 percent ad valorem.
Customs Laboratory Report of analysis of a sample of the merchandise presents a "fine gray powder" consisting of calcium aluminum silicate "coated with approximately 12 percent by weight of an aromatic resin - (phenyl methyl siloxane type)."
ISSUE:
Whether a powder preparation of calcium aluminum silicate coated with a silicone, siloxane type, is classifiable as a silicone in primary form or otherwise as appropriate.
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.
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.
While a silicone of heading 3910 is present, the presence of the calcium aluminum silicate establishes the merchandise as more than a discrete silicone. Heading 3910 covers only silicones in primary forms; it does not cover preparations based on silicones or products that are, as here, silicones in composition with inorganic substances.
We find that the merchandise is properly classifiable under heading 3823 as a residual product of the chemical or allied industries, not elsewhere specified or included in the tariff schedule.
HOLDING:
You are instructed to deny the protest in full.
A powder preparation of calcium aluminum silicate coated with a silicone, siloxane type, is classifiable under subheading 3823.90.2700, HTSUSA, a provision 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 containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: Other."
Merchandise entered under the foregoing provision (numbered 3823.90.2700) in 1994 was dutiable at the column one general rate of 3.7 cents/kilogram plus 13.6 percent ad valorem.
A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as a 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 this decision must be accomplished prior to the mailing of this decision by your office. Sixty days from the date of this 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, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division