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HQ 957883




June 1, 1995

CLA-2 R:C:F 957883 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2851.00.0010; 2851.00.0090

District Director
U.S. Customs Service
511 NW Broadway
Portland, Oregon 97209

RE: Application for Further Review of Protest No. 2907-4-100130, dated August 4, 1994 and liquidated May 5, 1994; gallium arsenide; waste and scrap; HRL 555621; HRL 953502

Dear District Director:

This is a decision on a protest filed August 4, 1994, against your decision in the classification under the Harmonized Tariff Schedule of the United States (Annotated) (HTSUSA), of goods entered June 1, 1993 and liquidated May 6, 1994.

FACTS:

The protestant entered the merchandise under subheading 8112.91.0500, HTSUSA, a provision in part for articles of gallium, including waste and scrap. Merchandise so classified in 1994 was entitled to be entered free of duty.

Customs liquidated the merchandise under subheading 2851.00.0010, HTSUSA, a provision in part for other inorganic compounds, gallium arsenide wafers, undoped, dutiable at the column one general rate of 2.8 percent ad valorem.

Protestant seeks reclassification to subheading 8112.91.0500, HTSUSA, as aforesaid.

The merchandise is broken and damaged gallium arsenide wafers, discarded ends of gallium arsenide ingots from which gallium arsenide wafers are sawn, and saw kerf particulate of gallium arsenide. The element gallium is a metal; whereas, the inorganic compound gallium arsenide is a crystal.

ISSUE:

Whether broken and damaged gallium arsenide wafers, discarded ends of gallium arsenide ingots from which gallium arsenide wafers are sawn, and saw kerf particulate of gallium arsenide crystals are classifiable, respectively, as an article of gallium, including waste and scrap of gallium.

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.

Protestant relies upon Headquarters Ruling Letter (HRL) 555621 (June 17, 1991) to establish reclassification. The issue presented in that ruling was whether gallium metal obtained in one scenario from the metallurgical and chemical processing of gallium arsenide trimmings off of gallium arsenide wafers was entitled to partial duty exemption under subheading 9802.00.60, HTSUSA. Both the merchandise and the issue presented then are quite different from the merchandise and the issue presented now, and we do not find HRL 555621, supra, relevant.

Since the merchandise giving rise to this protest is not gallium, but gallium arsenide, we find that the terms of heading 8112 do not describe the merchandise as entered.

Heading 2851 of the tariff schedule describes, inter alia, "Other inorganic compounds." While this heading does not specifically describe "waste and scrap,"
a provision for certain goods would include those goods fit for use as manufactured as well as those goods unfit for use as such, regardless of whether the sub-standard condition was due to ordinary wear and tear, a manufacturing defect, or otherwise.

See HRL 953502 (May 4, 1994) regarding commercially scrapped industrial furnace liners classifiable as pristine articles vice "waste and scrap."

We find that the subject merchandise is classifiable under subheading 2851.00.00 of the tariff schedule.

HOLDING:

The protest should be denied.

Broken and damaged gallium arsenide wafers are classifiable under subheading 2851.00.0010, HTSUSA, a provision for "Other inorganic compounds . . .: Gallium arsenide wafers, undoped."

Discarded ends of gallium arsenide ingots from which gallium arsenide wafers are sawn, and saw kerf particulate of gallium arsenide crystals are classifiable under subheading 2851.00.0090, HTSUSA, a provision for "Other inorganic compounds . . .: Other."

Merchandise entered under the foregoing provisions in 1993 was dutiable at the column one general rate of 2.8 percent ad valorem.

In accordance with section 3A(ll)(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

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