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HQ 957350



May 19,1995

CLA-2 R:C:M 957350 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7402.00.00

James A. Geraghty, Esq.
Donohue and Donohue
26 Broadway
New York, New York 10004

RE: Copper anodes for electrolytic refining; General EN, Chapter 74; Note 1, Chapter 74; EN 74.02; EN 74.03; refined copper; 7403.19.00; noscitur a sociis; NY 802626 affirmed

Dear Mr. Geraghty:

This is in response to your letter dated November 14, 1994, on behalf of Magma Copper Company, requesting reconsideration of New York Ruling (NY) 802626 dated October 18, 1994, which pertains to the tariff classification of copper anodes under the Harmonized Tariff Schedule of the United States (HTSUS). Supplemental letters dated November 29, 1994, and March 10, 1995, and information presented at a meeting on May 17, 1995, were considered in rendering this decision.

FACTS:

In NY 802626, the Area Director, New York Seaport, classified copper anodes made in Mexico under subheading 7402.00.00, HTSUS, as copper anodes for electrolytic refining. NY 802626 stated that the copper anodes were cast into anodes for "electrolytic refining" and, even if the copper anodes meet the definition of "refined copper" in Note 1(a), Chapter 74, HTSUS, they remained classified as copper anodes for electrolytic refining under subheading 7402.00.00, HTSUS, because they are "most specifically provided for" under that subheading.

You contend that the copper anodes are refined copper classifiable under subheading 7403.19.00, HTSUS, because they meet the definition of refined copper in Note 1(a), Chapter 74, HTSUS. Therefore, you contend that the dispositive question is whether the copper anodes are refined or unrefined. You provided independent laboratory analysis for prior importations of your client's copper anodes as evidence that they meet the definition of refined copper in Note 1(a), Chapter 74, HTSUS.

ISSUE:

Are the copper anodes classified as copper anodes for electrolytic refining under subheading 7402.00.00, HTSUS, or as other refined copper under subheading 7403.19.00, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." The competing subheadings at issue are:

7402.00.00 Unrefined copper; copper anodes for electrolytic refining.

7403.19.00 Refined copper and copper alloys, unwrought (other than master alloys of heading 7405)...Other.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). General EN, Chapter 74 (pg. 1041), states, in pertinent part, that:

This Chapter covers copper and its alloys, and certain articles thereof...

Copper is recovered from its sulphide ores by a dry extraction process in which the powdered and concentrated ore is roasted where necessary to drive off excess sulphur and smelted in a furnace to produce copper matte or regulus.

In some cases the concentrated ore is smelted in an air or oxygen flash smelting furnace ("flash smelting") without prior roasting.

The matte is treated in a converter to eliminate most of the iron and sulphur and produce "blister copper" (so-called because it has a rough and blistery surface). The blister copper is refined in a reverberatory furnace to produce fire-refined copper and, where required, may be further refined by electrolysis.

Note 1, Chapter 74, HTSUS, states that the following expressions have the meanings hereby assigned to them:

(a) Refined copper

Metal containing at least 99.85% by weight of copper; or

Metal containing at least 97.5% by weight of copper, provided that the content by weight of any other element does not exceed the limit specified in the following table:

TABLE - Other elements

Element Limiting content % by weight

Ag Silver 0.25
As Arsenic 0.5
Cd Cadmium 1.3
Cr Chromium 1.4
Mg Magnesium 0.8
Pb Lead 1.5
S Sulphur 0.7
Sn Tin 0.8
Te Tellurium 0.8
Zn Zinc 1
Zr Zirconium 0.3
Other elements*, each 0.3

* Other elements are, for example, Al, Be, Co, Fe, Mn. Ni, Si.

EN 74.02 (pg. 1043), states that heading 7402, HTSUS, covers:

(1) Black copper. It consists of an impure form of copper produced by smelting oxidised copper ores or impure copper scrap, usually in a blast furnace. The copper content varies widely, usually in the range of approximately 60 to 85% by weight.

(2) Blister copper. It consists of an impure form of copper produced by blowing air through molten copper matte. During the conversion process, sulphur, iron and other impurities are oxidised. The copper content is normally about 98% by weight.

(3) Copper anodes for electrolytic refining.

Copper partially refined by complete fusion is cast into anodes for further refining by electrolysis. These anodes are usually in the form of slabs cast with two lugs for suspending them in the electrolytic refining tank. They should not be confused with anodes for electro-copper-plating (heading 74.19).

EN 74.03 (pgs. 1043-1044), states, in pertinent part, that:

This heading covers unwrought refined copper and copper alloys as defined in Chapter Notes 1(a) and 1(b) respectively.

Refined copper containing at least 99.85% by weight of copper is obtained by electrolytic refining, electrolytic extraction, chemical refining or fire refining. Other refined copper (containing at least 97.5% by weight of copper) is normally produced by alloying the above-mentioned refined copper with one or more other elements up to the maximum content limits as shown in the table in Chapter Note 1(a)...

Electrolytically refined copper is sometimes presented in the form of cathodes consisting of plates or sheets with two loops attached by which the original starting sheets were suspended in the electrolytic refining tank, or with the loops cut off, or cut into sections.....

The subject copper anodes used for electrolytic refining are classifiable under subheading 7402.00.00, HTSUS, as copper anodes for electrolytic refining and under subheading 7403.19.00, HTSUS, as other refined copper. Based on the information presented, the subject copper anodes are, in fact, used for electrolytic refining, and meet the definition of refined copper in Note 1, Chapter 74, HTSUS. Since the subject copper anodes are prima facie classifiable under two headings, GRI 3(a), HTSUS, must be consulted. It states that:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

We are of the opinion that the most specific description of the subject copper anodes is subheading 7402.00.00, HTSUS, which provides for copper anodes for electrolytic refining. EN 74.02 specifically describes the subject copper anodes when describing copper anodes for electrolytic refining. Additionally, information available from the copper industry indicates that it does not consider copper anodes for electrolytic refining to be a refined copper product. This information also indicates that, because of technological advances, most if not all copper anodes for electrolytic refining meet the "refined copper" definition of Note 1, Chapter 74, HTSUS. Therefore, classification of the subject copper anodes under subheading 7403.19.00, HTSUS, as you proposed, would effectively eliminate the provision "copper anodes for electrolytic refining" from the HTSUS. Based on all the available information, we are of the opinion that the subject copper anodes are more specifically classified under subheading 7402.00.00, HTSUS.

You contend that the dispositive question is whether the subject copper anodes are refined copper (heading 7403) or unrefined copper (heading 7402). You assert that since the terms unrefined copper and copper anodes for electrolytic refining are found in the same subheading, pursuant to the rule of construction noscitur a sociis, the subject copper anodes must be unrefined copper to be classifiable under subheading 7402.00.00, HTSUS, as copper anodes for electrolytic refining. This rule of construction "...has the effect of declaring that the meaning of a word may be ascertained by reference to the meaning of words associated with it." See, Ruth F. Sturm, Customs Law and Administration, section 51.11 at 79 (19**). Noscitur a sociis has been applied where doubt has arisen in construing tariff language. See, Sturm, Id.; and United States v. Imperial Wall Paper Co., 14 CCPA 280, T.D. 41886 (1926). We do not believe that any doubt or ambiguity exists in interpreting the tariff provisions at issue. Therefore, there is no need to rely on the noscitur a sociis rule of construction.

HOLDING:

The copper anodes are classified as copper anodes for electrolytic refining under subheading 7402.00.00, HTSUS.

NY 802626 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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