CLA-2 CO:R:C:M CMS 088998
District Director of Customs
610 South Canal Street
Chicago, IL 60607
RE: Protest No. 3901-90-000254; Unwrought Zinc Alloy;
Remelted; Waste And Scrap; Molds; Blocks
Dear District Director:
This protest was filed against your liquidation dated
July 7, 1989, in which a certain zinc alloy product was
classified as unwrought zinc alloy in subheading 7901.20.00,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
FACTS:
The merchandise is a metal product in solid form comprised
of 93.49% zinc, 3.64% aluminum, 1.58% lead, 1.11% copper,
.139% nickel, .029% iron, .010% tin and .006% cadmium.
The merchandise is obtained from the melting of certain
sections of shredded automobiles. The metals comprising the
product under consideration are first melted with other metals
such as brass, bronze and stainless steel. The metals comprising
the product under consideration are then separated from this
mixture. Once melted, the metals are poured into a mold. It is
stated on the CF 3461 and Bill of Lading that the product is
imported in the form of blocks.
ISSUE:
Is the merchandise classified as unwrought zinc in Heading
7901, or as zinc waste and scrap in Heading 7902?
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LAW AND ANALYSIS:
The HTSUSA provides that the classification of articles is
governed by the General Rules of Interpretation (GRI's). GRI 1
states in pertinent part that "...classification shall be
determined according to the terms of the headings and any
relative section or chapter notes...".
Heading 7901 describes unwrought zinc. Heading 7902
describes zinc waste and scrap. Headings 7901 and 7902 are
Chapter 79 headings. Chapter 79 is a Section XV chapter.
Section XV Additional U.S. Note 1 provides in pertinent part
that zinc is a "base metal". Section XV Note 4 provides in
pertinent part that a reference in the tariff to a base metal
includes a reference to alloys of that metal. Section XV Note 3
provides in part that an alloy of base metal is to be classified
as an alloy of the metal which predominates by weight over each
of the other metals. Pursuant to the relative Section Notes, the
product under consideration is an alloy of zinc and is not an
alloy of any of the other metals with which the zinc is combined.
Section XV Additional U.S. Note 2 provides in pertinent part
that the term "unwrought" is defined as "...metal, whether or not
refined, in the form of...blocks...". The product under
consideration, which has been molded into the form of blocks or a
similar form, is described by the terms of Heading 7901 as
"unwrought zinc".
The protestant argues that the product should be classified
in Heading 7902 pursuant to GRI 3, because Heading 7902 is more
specific than Heading 7901.
Heading 7902, however, does not describe the product.
Section XV Note 6(a) defines "[w]aste and scrap" as "[m]etal
waste and scrap from the manufacture or mechanical working of
metals, and metal goods definitely not usable as such because of
breakage, cutting-up, wear or other reasons." Waste and scrap
obtained from the melting of unusable metal goods is not
described. The Explanatory Notes to Heading 7902 adopt the
Explanatory Notes to Heading 7204, mutatis mutandis. The
Explanatory Notes to Heading 7204 describe several processes of
acquiring scrap (e.g., fragmenting motor vehicle bodies), but the
Explanatory Notes do not describe the melting and molding of
fragmented automobile bodies.
The melting of zinc waste and scrap is, however,
specifically addressed in the Explanatory Notes to Heading 7902,
p. 1079, which state that Heading 7902 excludes "[i]ngots and
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similar unwrought forms cast from remelted zinc waste and scrap
(heading 79.01)" (emphasis in original). The protestant's
product invoice describes the product as "[r]emelted". If the
product under consideration is not obtained exactly by this
process, then it is acquired in a very similar process and is
described by and classified in Heading 7901 as "unwrought zinc".
The protestant also argues that the merchandise is not
classified in Heading 7901 because it is not commercially
recognized as zinc alloy, which would normally be used for such
purposes as casting or galvanizing. Instead, it is stated on
p. 8 of the protest attachment that the product is a "purely
fortuitous blend of metals", which is purified and then used to
make zinc oxide.
This argument, however, does not support the classification
of the merchandise in Heading 7902. Even if the product were
known by some in the trade as something other than unwrought zinc
alloy, the product would not be classified in Heading 7902. "It
is not enough that an article be called a tariff term in the
trade vernacular. There must also be a showing made that the
article embodies the salient characteristics of the tariff term
claimed." Clipper Belt Lacer Co., Inc. v. United States,
CIT , Slip Op. 90-22 (March 13, 1990), p. 15.
Section XV Additional U.S. Note 2 provides a specific
definition for "unwrought" metal, which the product satisfies.
The product also meets the description of the term "alloy"
provided at the heading level by Section XV Note 3, and at the
subheading level by Chapter 79 Subheading Note 1(b). The
Explanatory Notes to Heading 7902, p. 1079, which specifically
address basic unwrought forms cast from remelted zinc scrap
provide that the product is classified not in Heading 7902, but
in Heading 7901.
A showing has not been made that the product under
consideration embodies the salient characteristics of the Heading
7902 tariff term "waste and scrap". To the contrary, the product
does embody the salient characteristics of Heading 7901
"unwrought zinc".
Subheading 7901.20.00 describes unwrought zinc alloys.
Chapter 79 Subheading Note 1(b) provides that "[z]inc alloys" are
"[m]etallic substances in which zinc predominates by weight over
each of the other elements, provided that the total content by
weight of such other elements exceeds 2.5%." The product under
consideration is described by Chapter 79 Subheading Note 1(b) as
a zinc alloy and the product is classified pursuant to GRI 1 in
subheading 7901.20.00, HTSUSA.
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HOLDING:
The merchandise is classified as unwrought zinc alloy in
subheading 7901.20.00, HTSUSA. The protest should be denied. A
copy of this decision should be attached to the form 19 Notice of
Action.
Sincerely,
John Durant, Director
Commercial Rulings Division