CLA-2 RR:TC:FC 957441 EAB
Port Director
U.S. Customs Service
2nd & Chestnut Streets
Philadelphia, Pennsylvania 19106-2999
Re: Application for Further Review of Protest No. 1101-4-100611,
dated October 19, 1994, liquidated July 22, 1994; tantalum
concentrate or tantalum glass not ash or residues containing
metals or metal compounds
Dear Sir:
This is a decision on a protest filed October 19, 1994,
against your decision in the classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) of
merchandise entered March 3, 1994, liquidated July 22, 1994.
FACTS:
The merchandise was entered to be free of duty under
subheading 2615.90.6060, HTSUSA, a provision for "tantalum ores
and concentrates."
Customs liquidated the merchandise under subheading
2620.90.9000, HTSUSA, a residual provision for other ash and
residues containing metals or metal compounds, bearing duty at
the column one general rate of 5 percent ad valorem.
Protestant seeks reclassification either to subheading
2615.90.30, HTSUSA, a provision for synthetic tantalum-niobium
(columbium) concentrates or to subheading 2615.90.6060, HTSUSA,
as aforesaid. Merchandise entered in 1994 under either of these
provisions was dutiable at the column one general rate of "Free."
Customs Laboratory Report of analysis of the merchandise,
referred to as "tantalum glass," describes a "sample in the form
of irregularly shaped amorphous glass like particles . . .
consistent with tantalum ore that has been fused and then
ground."
Counterpoised to the aforesaid Customs Laboratory Report,
protestant advises Customs that the merchandise is primarily that
which remains after successive concentrations of pegmatite,
thence cassiterite and, thereafter, tin slag.
ISSUE:
Whether "tantalum glass" is classifiable as ash and residue
of metals or metal compounds, or as ore concentrate.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. Tariff classification is governed by the principles set
forth in the General Rules of Interpretation (GRIs) and, in the
absence of special language or context which otherwise requires,
by the Additional U.S. Rules of Interpretation. The GRIs and the
Additional U.S. Rules of Interpretation are part of the HTSUSA
and are to be considered statutory provisions of law for all
purposes.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRIs taken in order.
Were we concerned with the country of origin in this case,
we would note well that standard texts on metallurgy indicate
that tin slag is the source for one half of the tantalum produced
in the U.S. We could presume from this that the other half of
the tantalum produced in the U.S. is sourced from tantalum ore/s,
but, in classifying this merchandise, the source, presumed or
known, of the merchandise is irrelevant. Merchandise is
classifiable in its condition as imported.
Based upon the Customs Laboratory Report of analysis of a
sample of the merchandise at issue, we find that, in its
condition as imported, "tantalum glass" was a concentrate of
tantalum ore/s.
HOLDING:
You are instructed to allow the protest.
"Tantalum glass" was properly classified under subheading
2615.90.6060, HTSUSA, a provision for tantalum ores and
concentrates.
Merchandise entered in 1994 under the foregoing subheading
was dutiable at the column 1 General rate of "Free."
A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as a part of the notice of
action on the protest.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1992, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of this decision by
your office. Sixty days from the date of this decision, the
Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings
Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division