HQ 0088998 - Protest No. 3901-90-000254; Unwrought Zinc Alloy; Remelted; Waste And Scrap; Molds; Blocks - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0088757 - HQ 0088998 > HQ 0088998

HQ 088998

July 26, 1991

CLA-2 CO:R:C:M CMS 088998

CATEGORY: CLASSIFICATION

TARIFF NO.: 7901.20.00, 7902.00.00

District Director of Customs
610 South Canal Street
Chicago, IL 60607

RE: Protest No. 3901-90-000254; Unwrought Zinc Alloy; Remelted; Waste And Scrap; Molds; Blocks

Dear District Director:

This protest was filed against your liquidation dated July 7, 1989, in which a certain zinc alloy product was classified as unwrought zinc alloy in subheading 7901.20.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise is a metal product in solid form comprised of 93.49% zinc, 3.64% aluminum, 1.58% lead, 1.11% copper, .139% nickel, .029% iron, .010% tin and .006% cadmium.

The merchandise is obtained from the melting of certain sections of shredded automobiles. The metals comprising the product under consideration are first melted with other metals such as brass, bronze and stainless steel. The metals comprising the product under consideration are then separated from this mixture. Once melted, the metals are poured into a mold. It is stated on the CF 3461 and Bill of Lading that the product is imported in the form of blocks.

ISSUE:

Is the merchandise classified as unwrought zinc in Heading 7901, or as zinc waste and scrap in Heading 7902?

LAW AND ANALYSIS:

The HTSUSA provides that the classification of articles is governed by the General Rules of Interpretation (GRI's). GRI 1 states in pertinent part that "...classification shall be determined according to the terms of the headings and any relative section or chapter notes...".

Heading 7901 describes unwrought zinc. Heading 7902 describes zinc waste and scrap. Headings 7901 and 7902 are Chapter 79 headings. Chapter 79 is a Section XV chapter.

Section XV Additional U.S. Note 1 provides in pertinent part that zinc is a "base metal". Section XV Note 4 provides in pertinent part that a reference in the tariff to a base metal includes a reference to alloys of that metal. Section XV Note 3 provides in part that an alloy of base metal is to be classified as an alloy of the metal which predominates by weight over each of the other metals. Pursuant to the relative Section Notes, the product under consideration is an alloy of zinc and is not an alloy of any of the other metals with which the zinc is combined.

Section XV Additional U.S. Note 2 provides in pertinent part that the term "unwrought" is defined as "...metal, whether or not refined, in the form of...blocks...". The product under consideration, which has been molded into the form of blocks or a similar form, is described by the terms of Heading 7901 as "unwrought zinc".

The protestant argues that the product should be classified in Heading 7902 pursuant to GRI 3, because Heading 7902 is more specific than Heading 7901.

Heading 7902, however, does not describe the product. Section XV Note 6(a) defines "[w]aste and scrap" as "[m]etal waste and scrap from the manufacture or mechanical working of metals, and metal goods definitely not usable as such because of breakage, cutting-up, wear or other reasons." Waste and scrap obtained from the melting of unusable metal goods is not described. The Explanatory Notes to Heading 7902 adopt the Explanatory Notes to Heading 7204, mutatis mutandis. The Explanatory Notes to Heading 7204 describe several processes of acquiring scrap (e.g., fragmenting motor vehicle bodies), but the Explanatory Notes do not describe the melting and molding of fragmented automobile bodies.

The melting of zinc waste and scrap is, however, specifically addressed in the Explanatory Notes to Heading 7902, p. 1079, which state that Heading 7902 excludes "[i]ngots and
similar unwrought forms cast from remelted zinc waste and scrap (heading 79.01)" (emphasis in original). The protestant's product invoice describes the product as "[r]emelted". If the product under consideration is not obtained exactly by this process, then it is acquired in a very similar process and is described by and classified in Heading 7901 as "unwrought zinc".

The protestant also argues that the merchandise is not classified in Heading 7901 because it is not commercially recognized as zinc alloy, which would normally be used for such purposes as casting or galvanizing. Instead, it is stated on p. 8 of the protest attachment that the product is a "purely fortuitous blend of metals", which is purified and then used to make zinc oxide.

This argument, however, does not support the classification of the merchandise in Heading 7902. Even if the product were known by some in the trade as something other than unwrought zinc alloy, the product would not be classified in Heading 7902. "It is not enough that an article be called a tariff term in the trade vernacular. There must also be a showing made that the article embodies the salient characteristics of the tariff term claimed." Clipper Belt Lacer Co., Inc. v. United States, CIT , Slip Op. 90-22 (March 13, 1990), p. 15.

Section XV Additional U.S. Note 2 provides a specific definition for "unwrought" metal, which the product satisfies. The product also meets the description of the term "alloy" provided at the heading level by Section XV Note 3, and at the subheading level by Chapter 79 Subheading Note 1(b). The Explanatory Notes to Heading 7902, p. 1079, which specifically address basic unwrought forms cast from remelted zinc scrap provide that the product is classified not in Heading 7902, but in Heading 7901.

A showing has not been made that the product under consideration embodies the salient characteristics of the Heading 7902 tariff term "waste and scrap". To the contrary, the product does embody the salient characteristics of Heading 7901 "unwrought zinc".

Subheading 7901.20.00 describes unwrought zinc alloys. Chapter 79 Subheading Note 1(b) provides that "[z]inc alloys" are "[m]etallic substances in which zinc predominates by weight over each of the other elements, provided that the total content by weight of such other elements exceeds 2.5%." The product under consideration is described by Chapter 79 Subheading Note 1(b) as a zinc alloy and the product is classified pursuant to GRI 1 in subheading 7901.20.00, HTSUSA.

HOLDING:

The merchandise is classified as unwrought zinc alloy in subheading 7901.20.00, HTSUSA. The protest should be denied. A copy of this decision should be attached to the form 19 Notice of Action.

Sincerely,

Previous Ruling Next Ruling

See also: