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HQ 966138




January 15, 2003

CLA-2 RR:CR:GC 966138 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7601.2090, 9903.2714

Mr. Sergey Chebotayev
Marketing Manager

JV Intersplav

Sverdlovsk, Lugansk reg. Ukraine. 94800

RE: Unwrought aluminum alloy from Ukraine; HTSUS 9903; ad valorem duty rate

Dear Mr. Chebotayev:

In your letter to the Director, National Commodity Specialist Division, New York, dated September 17, 2002, you inquire as to the classification and duty rate under the Harmonized Tariff Schedule of the United States (HTSUS) of certain of your aluminum products. Your letter was received by the National Commodity Specialist Division on December 24, 2002 and was forwarded to this office for reply.

FACTS:

In your letter, you inquire whether aluminum alloys classified in the Ukrainian Commodity Classification of External Economic Activities Categories under subheadings 7601.20.9100 and 7601.20.9900 are subject to a 100 percent tariff under the HTSUS. You also request confirmation that merchandise classified under subheadings 7601.20.9045, 7601.20.9060, 7601.20.9075, 7601.20.9090 are subject to 100 percent duties under the HTSUS.

ISSUE:

Is this merchandise subject to a duty of 100 percent ad valorem under the HTSUS?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Temporary modifications in the tariff schedule are found in headings 9901 to 9903 of the HTSUS. Heading 9903 contains classes of goods from Chapters 1 to 98 inclusive, for which temporary modifications of the provisions in the tariff schedule are established pursuant to trade legislation. These rates temporarily supersede the duty rates specified in Chapters 1 to 98 until suspended or terminated.

The United States Trade Representative determined that for certain merchandise from the Ukraine classifiable under the HTSUS, entered or withdrawn from warehouse, for consumption, on or after January 23, 2002, a duty of 100 percent ad valorem will be collected. See Determination of Action To Increase Duties on Certain Products of Ukraine Pursuant to Section 301(b): Intellectual Property Laws and Practices of the Government of Ukraine, 67 Fed. Reg. 120 (January 2, 2002). Included on this list of merchandise is unwrought aluminum alloys provided for under subheading 7601.20.90, HTSUS. Such merchandise is subject to a duty of 100 percent ad valorem under subheading 9903.27.14, HTSUS. A Customs memorandum from the Executive Director, Trade Programs, Office of Field Operations to the Directors, Field Operations, dated January 17, 2002, is available on the Customs website, www.customs.gov, on the Customs Electronic Bulletin Board (CEEB), Trade Operations Instructions, and also discusses this duty.

Thus, currently, under subheading 9903.27.14, HTSUS, unwrought aluminum alloy provided for in heading 7601.20.90, HTSUS, (including subheadings 7601.20.9030, 7601.20.9045, 7601.20.9060, 7601.20.9075, and 7601.20.9090, HTSUS) from the Ukraine and entered or withdrawn from warehouse, for consumption, on or after January 23, 2002, is subject to a duty of 100 percent ad valorem.

We note that there is a clear distinction between classification of the goods, and the determination of the appropriate duty rate for those goods. The classification of this merchandise remains 7601.20.90, HTSUS, but the status of the normal duty rate is changed by subheading 9903.27.14, HTSUS.

Without further information regarding Ukrainian Commodity Classification of External Economic Activities Categories subheadings 7601.20.9100 and 7601.20.9900, we are unable to determine whether merchandise falling under those subheadings would be provided for under subheading 7601.20.90, HTSUS. There are no subheadings 7601.20.9100 or 7601.20.9900 in the HTSUS.

HOLDING:

At the present time, merchandise provided for in subheading 7601.20.90, HTSUS, as “Unwrought Aluminum: Aluminum alloys: . . . Other . . . Other,” from the Ukraine and entered or withdrawn from warehouse, for consumption, on or after January 23, 2002, is subject to a duty of 100 percent ad valorem under subheading 9903.27.14, HTSUS.

Sincerely,

Myles B. Harmon
Director,
Commercial Rulings Division

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