HQ 957350
May 19,1995
CLA-2 R:C:M 957350 KCC
James A. Geraghty, Esq.
Donohue and Donohue
26 Broadway
New York, New York 10004
RE: Copper anodes for electrolytic refining; General EN, Chapter 74; Note 1, Chapter 74; EN
74.02; EN 74.03; refined copper; 7403.19.00; noscitur a sociis; NY 802626 affirmed
Dear Mr. Geraghty:
This is in response to your letter dated November 14, 1994, on behalf of Magma Copper
Company, requesting reconsideration of New York Ruling (NY) 802626 dated October 18, 1994,
which pertains to the tariff classification of copper anodes under the Harmonized Tariff Schedule
of the United States (HTSUS). Supplemental letters dated November 29, 1994, and March 10,
1995, and information presented at a meeting on May 17, 1995, were considered in rendering this
decision.
FACTS:
In NY 802626, the Area Director, New York Seaport, classified copper anodes made in
Mexico under subheading 7402.00.00, HTSUS, as copper anodes for electrolytic refining. NY
802626 stated that the copper anodes were cast into anodes for "electrolytic refining" and, even if
the copper anodes meet the definition of "refined copper" in Note 1(a), Chapter 74, HTSUS, they
remained classified as copper anodes for electrolytic refining under subheading 7402.00.00,
HTSUS, because they are "most specifically provided for" under that subheading.
You contend that the copper anodes are refined copper classifiable under subheading
7403.19.00, HTSUS, because they meet the definition of refined copper in Note 1(a), Chapter 74,
HTSUS. Therefore, you contend that the dispositive question is whether the copper anodes are
refined or unrefined. You provided independent laboratory analysis for prior importations of your
client's copper anodes as evidence that they meet the definition of refined copper in Note 1(a),
Chapter 74, HTSUS.
ISSUE:
Are the copper anodes classified as copper anodes for electrolytic refining under
subheading 7402.00.00, HTSUS, or as other refined copper under subheading 7403.19.00,
HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of
Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to the terms of the headings and any relative section or chapter
notes...." The competing subheadings at issue are:
7402.00.00 Unrefined copper; copper anodes for electrolytic refining.
7403.19.00 Refined copper and copper alloys, unwrought (other than master alloys of heading
7405)...Other.
In understanding the language of the HTSUS, the Harmonized Commodity Description
and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not
dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings. See, T.D. 89-80, 54
Fed. Reg. 35127, 35128, (August 23, 1989). General EN, Chapter 74 (pg. 1041), states, in
pertinent part, that:
This Chapter covers copper and its alloys, and certain articles thereof...
Copper is recovered from its sulphide ores by a dry extraction process in which the
powdered and concentrated ore is roasted where necessary to drive off excess sulphur and
smelted in a furnace to produce copper matte or regulus.
In some cases the concentrated ore is smelted in an air or oxygen flash smelting furnace
("flash smelting") without prior roasting.
The matte is treated in a converter to eliminate most of the iron and sulphur and produce
"blister copper" (so-called because it has a rough and blistery surface). The blister copper
is refined in a reverberatory furnace to produce fire-refined copper and, where required,
may be further refined by electrolysis.
Note 1, Chapter 74, HTSUS, states that the following expressions have the meanings
hereby assigned to them:
(a) Refined copper
Metal containing at least 99.85% by weight of copper; or
Metal containing at least 97.5% by weight of copper, provided that the content by
weight of any other element does not exceed the limit specified in the following
table:
TABLE - Other elements
Element Limiting content % by weight
Ag Silver 0.25
As Arsenic 0.5
Cd Cadmium 1.3
Cr Chromium 1.4
Mg Magnesium 0.8
Pb Lead 1.5
S Sulphur 0.7
Sn Tin 0.8
Te Tellurium 0.8
Zn Zinc 1
Zr Zirconium 0.3
Other elements*, each 0.3
* Other elements are, for example, Al, Be, Co, Fe, Mn. Ni, Si.
EN 74.02 (pg. 1043), states that heading 7402, HTSUS, covers:
(1) Black copper. It consists of an impure form of copper produced by smelting
oxidised copper ores or impure copper scrap, usually in a blast furnace. The
copper content varies widely, usually in the range of approximately 60 to 85% by
weight.
(2) Blister copper. It consists of an impure form of copper produced by blowing air
through molten copper matte. During the conversion process, sulphur, iron and
other impurities are oxidised. The copper content is normally about 98% by
weight.
(3) Copper anodes for electrolytic refining.
Copper partially refined by complete fusion is cast into anodes for further
refining by electrolysis. These anodes are usually in the form of slabs cast with
two lugs for suspending them in the electrolytic refining tank. They should not be
confused with anodes for electro-copper-plating (heading 74.19).
EN 74.03 (pgs. 1043-1044), states, in pertinent part, that:
This heading covers unwrought refined copper and copper alloys as defined in Chapter
Notes 1(a) and 1(b) respectively.
Refined copper containing at least 99.85% by weight of copper is obtained by
electrolytic refining, electrolytic extraction, chemical refining or fire refining. Other
refined copper (containing at least 97.5% by weight of copper) is normally produced by
alloying the above-mentioned refined copper with one or more other elements up to the
maximum content limits as shown in the table in Chapter Note 1(a)...
Electrolytically refined copper is sometimes presented in the form of cathodes
consisting of plates or sheets with two loops attached by which the original starting sheets
were suspended in the electrolytic refining tank, or with the loops cut off, or cut into
sections.....
The subject copper anodes used for electrolytic refining are classifiable under subheading
7402.00.00, HTSUS, as copper anodes for electrolytic refining and under subheading 7403.19.00,
HTSUS, as other refined copper. Based on the information presented, the subject copper anodes
are, in fact, used for electrolytic refining, and meet the definition of refined copper in Note 1,
Chapter 74, HTSUS. Since the subject copper anodes are prima facie classifiable under two
headings, GRI 3(a), HTSUS, must be consulted. It states that:
(a) The heading which provides the most specific description shall be preferred to
headings providing a more general description. However, when two or more
headings each refer to part only of the materials or substances contained in mixed
or composite goods or to part only of the items in a set put up for retail sale, those
headings are to be regarded as equally specific in relation to those goods, even if
one of them gives a more complete or precise description of the goods.
We are of the opinion that the most specific description of the subject copper anodes is
subheading 7402.00.00, HTSUS, which provides for copper anodes for electrolytic refining. EN
74.02 specifically describes the subject copper anodes when describing copper anodes for
electrolytic refining. Additionally, information available from the copper industry indicates that it
does not consider copper anodes for electrolytic refining to be a refined copper product. This
information also indicates that, because of technological advances, most if not all copper anodes
for electrolytic refining meet the "refined copper" definition of Note 1, Chapter 74, HTSUS.
Therefore, classification of the subject copper anodes under subheading 7403.19.00, HTSUS, as
you proposed, would effectively eliminate the provision "copper anodes for electrolytic refining"
from the HTSUS. Based on all the available information, we are of the opinion that the subject
copper anodes are more specifically classified under subheading 7402.00.00, HTSUS.
You contend that the dispositive question is whether the subject copper anodes are refined
copper (heading 7403) or unrefined copper (heading 7402). You assert that since the terms
unrefined copper and copper anodes for electrolytic refining are found in the same subheading,
pursuant to the rule of construction noscitur a sociis, the subject copper anodes must be unrefined
copper to be classifiable under subheading 7402.00.00, HTSUS, as copper anodes for electrolytic
refining. This rule of construction "...has the effect of declaring that the meaning of a word may
be ascertained by reference to the meaning of words associated with it." See, Ruth F. Sturm,
Customs Law and Administration, section 51.11 at 79 (19**). Noscitur a sociis has been applied
where doubt has arisen in construing tariff language. See, Sturm, Id.; and United States v.
Imperial Wall Paper Co., 14 CCPA 280, T.D. 41886 (1926). We do not believe that any doubt
or ambiguity exists in interpreting the tariff provisions at issue. Therefore, there is no need to rely
on the noscitur a sociis rule of construction.
HOLDING:
The copper anodes are classified as copper anodes for electrolytic refining under
subheading 7402.00.00, HTSUS.
NY 802626 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division