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HQ 962351




September 24, 1999

CLA-2 RR:CR:GC 962351 MGM

CATEGORY: CLASSIFICATION

TARIFF NO.: 7111 .00.00

Port Director
U.S. Customs Service
605 W. Fourth Ave.
Anchorage, AK 99501

RE: Protest 3195-98-100003; Platinum Clad Wire

Dear Port Director:

This is our decision regarding Protest 3195-98-100003 concerning your classification of platinum clad wire under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this ruling, consideration was given to a supplemental submission of counsel for the protestant submitted at a meeting at Customs Headquarters on September 21, 1999.

FACTS:

The instant merchandise is a platinum clad wire used to make leads for temperature sensitive electric resistors. The wire is made of nickel and iron with small quantities of carbon, manganese and silicon. Nickel predominates by weight. The wire is coated with a thin layer of platinum. The composition and dimensions of the wire are rigorously controlled in the manufacturing process so that the resistor will have the desired conductivity. The merchandise is imported in 400 meter reels. After importation the reels are mechanically unwound, cut to length and assembled into electrical resistors. The resistors are used in mass airflow meters in automobiles. Correspondence between the protestant and the manufacturer refers to the merchandise as “wire, iron/nickel-platinum clad.”

The merchandise was entered in the period from November 1996 to July 1997, under subheading 7505.22.10, HTSUS, which provides for wire of nickel alloys. The protestant was notified of rate advance actions on September 8, 10 and 11, 1997. The entries were liquidated in September and October of 1997, with classification under subheading 7111.00.00, HTSUS, the provision for base metals clad with platinum, not further worked than semimanufactured. This classification was timely protested on December 22, 1997. In a submission which accompanied the protest, the protestant expressly abandoned the entered classification in subheading 7505.22.10, HTSUS, and argued for classification in subheading 8533.90.80, HTSUS, which provides for parts of electrical resistors.

ISSUE:

Is the described merchandise a “part” of an electrical resistor?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. 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 requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80. 54 Fed. Reg. 35127 (August 23. 1989).

The merchandise was classified in heading 7111, HTSUS, upon liquidation. This heading provides for “[b]ase metals, silver or gold, clad with platinum, not further worked than semimanufactured.” Note 3 to Section XV, HTSUS, states that throughout the HTSUS the term “base metals” includes iron, steel, nickel and manganese. Alloys of base metals and elements other than base metals are considered base metals where the base metal predominates by weight. Note 5, Section XV, HTSUS; Note 6, Section XV, HTSUS. Thus, the core of the wire is made of base metal.

The phrase “metal clad with precious metal” is defined to mean material made with a base of metal upon one or more surfaces of which there is affixed by mechanical means a covering of precious metal. Note 7, Chapter 71, HTSUS. We construe “base metalsclad with platinum” to be analogous to “metal clad with precious metal.” The Explanatory Notes state that wire clad with precious metal is obtained by inserting a core of base metal into a tube of precious metal, “sweating” the two metals together and then drawing them through a die. General EN, Chapter 71. This is the method by which the instant wire is coated with platinum.

“The term ‘semimanufactured’ refers to wrought metal products in the form of...wire." Additional U.S. Note 1(b), Chapter 71, HTSUS (emphasis in original).

As the merchandise is of semimanufactured base metal clad with platinum, it is described by heading 7111. HTSUS. Protestant may argue that the merchandise is more than “semimanufactured,” however, that term is specifically defined to include the instant merchandise.

Protestant contends that the merchandise should be classified in subheading 8533.90.80. HTSUS, as parts of electrical resistors. A provision for parts of an article covers products solely or principally used as a part of such article but a provision for parts shall not prevail over a specific provision for such part or accessory, unless there is special language or context which otherwise requires. Additional US. Rule of Interpretation 1(c), HTSUS. That is, in the absence of tariff language which indicates a contrary intent, a provision which specifically describes an article of merchandise will predominate over a provision for parts of an article, even where the merchandise is principally used as a part of that article. Here, plaintiff argues, there is language which indicates an intent to classify the instant merchandise as a part of an electrical resistor.

Note 2, Section XVI, states that parts of machines which are goods included in any of the headings of Chapter 85 are in all cases to be classified in their respective headings. See Headquarters Ruling Letter (HQ) 957868, dated May 12, 1995; HQ 958276, dated October 6, 1995. Parts of electrical resistors are specifically included in heading 8533, HTSUS, therefore, this note indicates, such parts are to be classified in heading 8533 and nowhere else. This is consistent with the notes to Chapter 71, which state that parts of “machinery, mechanical appliances or electrical goods” are excluded from Chapter 71. Note 3(k), Chapter 71, HTSUS. Consequently, if the merchandise is a “part” of an electrical resistor, it is specifically included in Chapter 85, and specifically excluded from Chapter 71.

The Court of Appeals for the Federal Circuit has recently spoken to the issue of “[w]hether an imported item that is made into multiple parts after import is classifiable as ‘parts’ of other articles under the HTSUS” in Baxter Healthcare Corporation of Puerto Rico v. U.S., Slip Op. 98-1343 (Fed. Cir. 1999). In this case, the court enunciated a two-part test to determine if merchandise is classifiable as “parts.” First, “the item must be dedicated solely or principally for use in those articles [of which it is said to be a part] and must not have substantial other independent commercial uses.” Here, the protestant avers that there is no other independent commercial use for the merchandise. The second part of the test is “if the item as imported can be made into multiple parts of articles the item must identify and fix with certainty the individual parts that are to be made from it.” In Baxter, the items of merchandise at issue, large rolls of monofilament, were held not to be “parts” because “[a]t the time of import, the individual parts cannot be discerned from the roll, and the roll nowhere marks or otherwise identifies the individual parts to be made from it.” The instant case is similar in that individual resistor leads cannot be discerned from the reel of platinum clad wire, and the reel of wire does not in any way mark the individual parts to be made from it. Materials submitted in conjunction with the protest suggest that protestant manufactures more than one type of resistor and that the length of the resistor lead varies with the resistor being produced. That is, the parts derived from the platinum clad wire are in no way fixed, but depend upon the method of manufacture. Therefore, the reel of platinum clad wire is not a “part” of an electrical resistor under the test enunciated in Baxter and is not subject to inclusion in heading 8533, HTSUS, pursuant to Note 2, Section XVI. Neither is it excluded from Chapter 71, HTSUS, by Note 3(k), Chapter 71, HTSUS.

HOLDING:

You are instructed to deny the protest. Base metal wire clad with platinum not marked or identified as individual parts, is classified in subheading 7111.00.00, HTSUS.

In accordance with Section 3A(l 1)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,
John Durant, Director
Commercial Rulings Division


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