CLA-2 CO:R:C:M 952242 CMS
Carl R. Soller, Esq.
Soller, Shayne & Horn
46 Trinity Place
New York, NY 10006
RE: Lead Micro Shot; Micro Granules; Powders; Flakes;
Unwrought; HQ 088517, Affirmed; 7801.99.90
Dear Mr. Soller:
This is in response to your request dated July 15, 1992, on
behalf of Non-Ferrous Traders, Inc., for the reconsideration of
HQ 088517 (April 17, 1992). In HQ 088517, we held that certain
lead products were classified as lead powders in Heading 7804 of
the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise is described as 99.97% lead "micro shot".
It is produced from molten lead in spherical forms which range in
diameter from 0.1 to 0.5 mm. The lead products will be injected
pneumatically into molten steel to form a uniform alloy.
ISSUE:
Is the merchandise classified as unwrought lead, in Heading
7801, HTSUS, or as lead powders, in Heading 7804, HTSUS?
LAW AND ANALYSIS:
The HTSUS 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 7801 describes unwrought lead. Heading 7804 in part
describes lead powders.
-2-
Section XV Additional U.S. Note 2 provides that for the
purposes of Section XV (which encompasses Chapter 78), "...the
term "unwrought" refers to metal, whether or not refined, in the
form of ingots...grains, sponge, pellets, flattened pellets,
rounds, rondelles, shot and similar manufactured primary
forms...".
Section XV Note 6(b) provides that for the purposes of
Section XV, the term "Powders" means "[p]roducts of which 90
percent or more by weight passes through a sieve having a mesh
aperture of 1 mm."
The lead products under consideration have diameters which
range from 0.1 to 0.5 mm. The products are clearly defined as
"Powders" by Section XV Note 6(b).
The Harmonized Commodity Description and Coding System
Explanatory Notes to Heading 7804, p. 1074, provide that "[t]he
heading also covers lead powders as defined in Note 6(b) to
Section XV and lead flakes."
The Explanatory Notes to Heading 7801, p. 1073, also refer
to lead powders, and provide that Heading 7801 "...excludes lead
powders or flakes (heading 78.04)" (emphasis in original).
For HTSUS classification purposes, the merchandise under
consideration is defined as lead powders and is specifically
described by Heading 7804. HQ 088517 properly classified the
merchandise as "lead powders...: ...Powders and flakes", in
subheading 7804.20.00, HTSUS, and is affirmed. Similar
merchandise was also classified in Heading 7804 in HQ 950031
(November 13, 1991).
The ruling requestor presents a number of arguments as to
why the merchandise should be classified in Heading 7801.
First, it is argued that the merchandise is a primary,
"unwrought" form of metal, manufactured directly from molten
lead. Thus, it is argued, the merchandise cannot fall in Heading
7804 because Heading 7804 only covers "wrought" metal. We find
this argument to be unpersuasive. Section XV Additional U.S.
Note 2 does include "...shot and similar manufactured primary
forms..." in the definition of "unwrought". However, Additional
U.S. Note 2 does not identify "powder" as an "unwrought" product.
The question as to whether the merchandise is classified as "shot
and similar manufactured primary forms", is resolved by Section
XV Note 6(b), which clearly defines the product as "powders", a
product specifically described by Heading 7804. The Explanatory
Notes to Headings 7801 and 7804 also indicate that products
defined as lead powders by Section XV Note 6(b) were intended to
be classified in Heading 7804.
-3-
It is also argued that the merchandise cannot be classified
as lead powder in Heading 7804, because the merchandise is
unwrought lead shot, specifically identified in Section XV U.S.
Additional Note 2, and is excluded from Heading 7804 according to
the Explanatory Notes to Heading 7804. Assuming, arguendo, that
the product is known in the trade as shot, Section XV Note 6(b)
still instructs that the merchandise is considered "Powders" for
HTSUS classification purposes. "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
1(March 13, 1990), p. 15.
It is further argued that certain provisions in chapters
other than Chapter 78 suggest that the merchandise be classified
in Heading 7801. However, the merchandise in its condition as
entered is a lead product. Provisions, including Explanatory
Notes, for chapters which describe non-lead metals would not
seem to contravene the clear legal notes which are instructive on
the classification of Chapter 78 lead powders.
Finally, even if the merchandise was described by both
Headings 7801 and 7804, it would still be classified in Heading
7804 which provides the much more specific description of "lead
powders".
HOLDING:
HQ 088517 (April 17, 1992) properly classified the
merchandise as "lead powders...: ...Powders and flakes", in
subheading 7804.20.00, HTSUS, and is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division