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HQ 965294




July 22, 2002

CLA-2 RR:CR:GC 965294 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2825.90.90

Mr. Robert Knopf
Atlantic Metals & Alloys, Inc.
P.O. Box 589
Stratford, CT 06615

RE: New York ruling letter H85855; Crude Oxide of Bismuth

Dear Mr. Knopf:

This is our decision regarding your letter, dated February 5, 2002, to the National Commodity Specialists Division, New York, requesting reconsideration of New York Ruling Letter (NY) H85855, dated January 30, 2002, regarding the tariff classification, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS), of crude oxide of bismuth. Your letter was referred to this office for response. We regret the delay.

FACTS:

The Kirk-Othmer Encyclopedia of Chemical Technology, Fourth Edition, pp. 252-3 states, in pertinent part, the following:

The only oxide of bismuth that has been definitely isolated in a pure state is bismuth trioxide. . . . . A number of other oxides have been reported, eg, bismuth oxide (1:1) [1332-64-5], bismuth oxide (1:2), bismuth oxide (2:4) [12048-50-9], bismuth oxide (3:5) and bismuth oxide (4:9).

Bismuth Trioxide. Bismuth(III) oxide [1304-76-3] has a complicated polymorphism. At times some of the reported phases deviate from Bi2O3 by having too little or too much oxygen;

Bismuth trioxide may be prepared by the following methods: (1)the oxidation of bismuth metal by oxygen at temperatures between 750º and 800º C; . . . .

Van Nostrand’s Scientific Encyclopedia, 6th Ed., states, in pertinent part, “Bismuth(III) oxide, Bi2O3, is the compound produced by heating the metal, or its carbonate, in air. It is definitely a basic oxide, dissolving readily in acid solutions . . . .” Id. at 375.

The Merck Index, 11th Edition,1989, p. 197 lists the uses for bismuth oxide thus: "[I]n disinfectants, magnets, glass, rubber vulcanization, in fireproofing of papers and polymers, in catalysts."

The sample (#1138(b)) you submitted on September 25, 2001, was tested. Customs laboratory report NY20011268, dated January 25, 2002, states, in pertinent part, “the sample is a fine beige powder. Laboratory analysis has determined that the sample is essentially bismuth oxide. It is not an ore, concentrate or cermet.”

You state that in the usual refining process for bismuth metal, a crude lead/bismuth bullion is melted and pumped through with chlorine gas. The chlorine combines with the lead fraction to produce lead chloride, which is skimmed off. The resulting molten bismuth bath is then blown through with air to remove the residual chlorine. As the air blow progresses, a crude bismuth oxide is formed, the material under consideration. You state further that the bismuth oxide is imported solely to produce other, commercial quality chemical compounds of bismuth, for example: bismuth nitrate, bismuth oxychloride and bismuth salicylate.

In NY H85855 the instant merchandise was classified in subheading 2825.90.90, HTSUS, the provision for “[H]ydrazine and hydroxylamine and their inorganic salts; other inorganic bases; other metal oxides, hydroxides and peroxides: [O]ther: [O]ther.”

ISSUE:

What is the classification of the crude bismuth oxide?

LAW AND ANALYSIS:

Merchandise imported into the United States 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 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. 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 HTSUS headings under consideration are as follows:

2825: Hydrazine and hydroxylamine and their inorganic salts; other inorganic bases; other metal oxides, hydroxides and peroxides:

Other ores and concentrates

Ash and residues (other than from the manufacture of iron and steel) containing metals or metal compounds.

Bismuth and articles thereof, including waste and scrap

Chapter 28, note 3 states, in pertinent part, " . . .this chapter does not cover: . . . (g) The metals, whether or not pure, metal alloys or cermets, including sintered metal carbides (metal carbides sintered with a metal), of section XV; . . . "

EN 26.17 states, in pertinent part, the following: The principal ores generally classified in this heading are: . . . . (3) Bismuth ores.
Bismuthinite (or bismuth glance), bismuth sulphide. Bismutite, hydrated bismuth carbonate.
Bismuth ochre (or bismite), hydrated bismuth oxide.

EN 26.20, states in pertinent part, "[T]he heading also excludes . . . [C]hemically defined compounds of Chapter 28."

EN 28.25 states, in pertinent part, the following:

This heading covers: . . . .
(18) Bismuth oxides and hydroxides.
Dibismuth Trioxide (Bi2O3)
Prepared from bismuth nitrate or carbonate. Pale yellow powder, insoluble in water and turning red when heated. Used in the glass or ceramic industries. Dibismuth pentaoxide (red oxide) (Bi2O5). Brownish-red powder. Bismuth hydroxide (Bi(OH)3).

The ENs to Chapter 81 state, in pertinent part, "[T]his Chapter is limited to the following base metals, their alloys, and articles thereof which are not more specifically covered elsewhere in the Nomenclature: (A) . . . .bismuth (heading 81.06).

The manufacturing process of the instant merchandise matches that listed in the literature for bismuth oxide. The stated use of the substance is not one of those listed in the literature, but this is not dispositive. Furthermore, Customs laboratory report NY20011268 states that the substance is bismuth oxide. It is Customs’ practice not to disregard the reports of Customs laboratories. See Customs Directive 099-3820-002, issued May 4, 1992; see also Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965).

There is no dispute that the instant merchandise is an oxide of the metal Bismuth and that it is a separate chemically defined compound. The instant merchandise is therefore classifiable in heading 2825 as an other metal oxide. Under EN 28.25 (B)(18), any oxide of bismuth, regardless of the ratio of bismuth to oxygen, is classified as a metal oxide.

As a separate chemically defined compound, the instant merchandise is specifically excluded from classification in heading 2620, HTSUS, under EN 26.20. Furthermore, Customs laboratory report NY20011268 states that the substance is not an ore or concentrate and bismuth oxide is not listed in EN 26.17 as a bismuth ore. The merchandise is therefore excluded from classification in heading 2617, HTSUS, as an ore or concentrate.

Chapter 81, HTSUS, covers base metals, their alloys, and articles thereof. Chapter 28, note 3(g), HTSUS, excludes the metals of section XV from the chapter. The base metal Bismuth is eo nomine provided for in heading 8106, HTSUS, of section XV, HTSUS. However, the instant merchandise is not the base metal Bismuth. It is the oxide of the base metal that is specifically described as a metal oxide compound. The instant merchandise can not be classified as a base metal, alloy or article thereof, even if it is used for its base metal content. It is specifically described by the terms of heading 2825, HTSUS, and is not described by the terms of heading 8106, HTSUS.

Lastly, in your letter of February 5, 2002, you state that the good must be imported as there is none produced in the U.S. and then make many economic arguments for classification of crude bismuth oxide in a duty free provision. An economic argument was also raised in your letter of February 20,2002. While we appreciate these comments, they are not relevant considerations in the tariff classification of imported articles. Congress empowered Customs to administer tariff provisions in a revenue-neutral manner based on the mandates of the GRIs. Congress establishes duty rates, and we are thus unable to address your economic concern.

HOLDING:

Crude bismuth oxide is classified in subheading 2825.90.90, HTSUS, the provision for “[H]ydrazine and hydroxylamine and their inorganic salts; other inorganic bases; other metal oxides, hydroxides and peroxides: [O]ther: [O]ther.” NY H85855 is affirmed.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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