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HQ 088923


July 24, 1991

CLA-2 CO:R:C:F 088923 ALS

TARIFF NO.: 3823.90.5050

District Director of Customs
300 South Ferry Street
Terminal Island
Room 2017
San Pedro, California 90731

RE: Request for Further Review of Protest 2704-91-100323, dated January 18, 1991, Regarding A Ball Composed of Tellurium and Selenium Which is Further Processed, After Importation, Into a Drum for a Copying Machine

Dear Mr. Heinrich:

This ruling is on a protest that was filed against your decision in the liquidation of October 26, 1990.

FACTS:

The article is a shinny black ball composed of approximately 8 per cent tellurium and 92 per cent selenium which is further processed, after importation, into a drum for a copying machine.

ISSUE:

What is the classification of the subject article?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods, and if the heading - 2 -
and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the possible headings eligible of the article, we noted that the protestant indicated the article was a selenium and tellurium alloy and should be classified, as entered, under subheading 2851.00.0000, HTSUSA, the provision for amalgams, other than amalgams of precious metals. Reference is made in that argument to a definition of term "amalgam" in Webster's New Collegiate Dictionary, as "a mixture of different elements." The protestant disagrees with your classification of the article under subheading 3823.90.5050, HTSUSA, which generally provides for a mixture of elements not elsewhere provided for. They further noted that the GRI's require that classification under headings giving a more specific description be favored over those with a more general description.

We considered the various arguments put forth by the protestant. While we agree with his statement that the more specific heading should be favored over the more general heading, we believe that is a matter for consideration when we have two headings which might both be applicable to the article. That is not the case here. There are several flaws in the protestant's argument.

We initially noted that the article, while an element in the general sense of the word, is neither an amalgam or alloy as claimed. In order to be an amalgam an article must contain mercury. (Hawley's Condensed Chemical Dictionary, Eleventh Edition, and The Encyclopedia Americana International Edition, volume 19). Explanatory Note 28.51 to subheading 2851.00.0000, HTSUSA, confirms that mercury must be present to have an amalgam for tariff purposes. The article does not contain any mercury.

In considering whether the article is an alloy, we once again referred to the above sources. Both sources indicated that there had to be one or more metals in the mixture for the article to be considered an alloy. Thus, it is necessary to ascertain whether either the selenium and tellurium is a metal. In this regard, we referred to both the HTSUSA and the aforementioned sources. We found that neither of the components were considered a precious or base metal. Legal Note 4(a) to Chapter 71, HTSUSA, states that "precious metal" means silver, gold and platinum. - 3 -

Additional U.S. Note 1 to Section XV, HTSUSA, which specifies what the term "base metals" embraces for the purposes of the tariff schedule, does not include selenium or tellurium. We further confirmed this finding in HAWLEY'S and Americana, supra. Both components are referenced therein as metalloids, i.e. nonmetals. Both components are specifically listed, in Hawley's, supra, as nonmetals. Further reference to the "Periodic table of the elements" confirms the groupings of selenium and tellurium with nonmetals. Thus, subheading 2851.00.0000, HTSUSA, is not an option for classification of the subject article.

We next considered where the article might be classified. Since it is not specifically an element or compound separately defined in the HTSUSA, we have concluded that it must be classified in Chapter 38, HTSUSA, as a miscellaneous chemical product.

HOLDING:

The article, composed of selenium and tellurium, is classifiable under subheading 3823.90.5050, HTSUSA, and is dutiable at the general rate of 5 per cent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full.

A copy of this ruling should be attached to Form 19 Notice of Action furnished the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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