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HQ 967661




March 31, 2006

CLA–2 RR:CTF:TCM 967661 KSH

TARIFF NO.: 2617.10.0000

Joseph R. Hoffacker
Barthco Trade Consultants
The Navy Yard
5101 S. Broad Street
Philadelphia, PA 19112

RE: Revocation of New York Ruling Letter (NY) R01069, dated December 8, 2004; Classification of antimony trisulphide.

Dear Mr. Hoffacker:

This is in response to your letter of April 7, 2005, in which you request reconsideration of New York Ruling Letter (NY) R01069, issued to your client Asbury Graphite Mills, Inc., on December 8, 2004, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of antimony trisulphide. The antimony trisulphide was classified in subheading 2830.90.0000, HTSUS, which provides for “Sulfides; polysulfides, whether or not chemically defined: Other.’’ You assert that because the merchandise at issue is antimony ore it is classified in subheading 2617.10.0000, HTSUS, which provides for ‘‘Other ores and concentrates: Antimony ores and concentrates.’’ CBP has reviewed the classification of this item and has determined that the cited ruling is in error. In reaching this determination, we have also considered your submissions of January 25, 2006 and January 30, 2006.

Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103–182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY R00794 was published in the Customs Bulletin, Vol. 40, No. 2, on January 4, 2006. No comments were received in response to the notice.

FACTS:

The antimony trisulphide is stibnite which contains 1% quartz. It is mined in Italy in open-pit and under-ground mines. The ores have a medium-high concentration of Antimony Trisulphide (40-60%). To separate the Antimony Trisulphide from gangue, ores are enriched using the typical mining method of ore-flotation process, in which the ores are crushed and powders are agitated with water containing a foaming agent and an agent to make the Antimony bearing particles water-repellent. These particles accumulate in the froth on the surface of the flotation tank, and this froth is skimmed off. The concentrates (65-69% Antimony Trisulphide) are dried and then grinded, using a hammer mill, to requested granulometry. The final product is bagged in 25 kg paper bags. The antimony trisulphide is imported to be sold to manufacturers of brake pads.

ISSUE:

Whether the antimony trisulphide is classified as a sulfide or polysulfide of heading 2830, HTSUS, or as an antimony ore or concentrate of heading 2617, HTSUS.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

Heading 2617, HTSUS, provides for “Other ores and concentrates.” The E.N. to heading 2617, HTSUS, provides the following in relevant part:

The principal ores generally classified in this heading are:

Antimony ores.

(d) Stibnite (or antimonite), antimony sulphide

Chapter Note 2 to Chapter 26, HTSUS, provides the following:

For the purposes of headings 2601 to 2617, the term “ ores ” means minerals of mineralogical species actually used in the metallurgical industry for the extraction of mercury, of the metals of heading 2844 or of the metals of Section XIV or XV, even if they are intended for non-metallurgical purposes. Headings 2601 to 2617 do not, however, include minerals which have been submitted to processes not normal to the metallurgical industry.

Heading 2830, HTSUS, provides for “Sulfides; polysulfides, whether or not chemically defined.” The E.N. to heading 2830, HTSUS, states that the heading covers metal sulphides including:

(9) Antimony sulphides.

Artificial trisulphide (Sb2S3)

The antimony trisulphide at issue is an ore which is intended for non-metallurgical purposes, i.e, brake pads. However, it is also a mineralogical species actually used in the metallurgical industry. Chapter Note 2 to Chapter 26, HTSUS, states that ores include minerals of mineralogical species actually used in the metallurgical industry for the extraction of mercury, of the metals of heading 2844 or of the metals of Section XIV or XV, even if they are intended for non-metallurgical purposes. Thus, the use of antimony trisulphide for brake pads does not disqualify it from classification in Chapter 26, HTSUS. The processing the antimony trisulphide undergoes, namely simple froth flotation, is a physical process of mineral segregation that does not result in any chemical or physical change to the either the ore or the gangue. The antimony trisulfide remains the same throughout its processing, packaging, and utilization in applications to which it is applied. The molecular and crystallographic structure and form are not altered in any way. As it has not been chemically modified, classification in heading 2830, HTSUS, is precluded. Pursuant to GRI 1, the antimony trisulphide is classified in heading 2617, HTSUS.

HOLDING:

The antimony trisulphide is classified in subheading 2617.10.0000, HTSUS, which provides for ‘‘Other ores and concentrates: Antimony ores and concentrates.’’ The general column one rate of duty is Free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY R01069, dated December 8, 2004, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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