CLA-2 RR:CR:GC 961439 JAS
Mr. Roy F. Knapp, Jr.
Consultech Incorporated
18837 Palm Circle
Fairview Park, Ohio 44126
RE: Magnesium Ingot Stub; Ears; Unwrought Magnesium, Ingot; Waste and Scrap, Heading 8104; Top Portion by which Primary Magnesium Ingot is Mechanically Fed into a Grinding Machine;
Waste and Scrap, Section XV, Note 8(a), HTSUS; "unwrought" Section XV, Additional U.S. Note 1, HTSUS; Metals Handbook
Dear Mr. Knapp:
Your letter, dated February 16, 1998, on behalf of
Rossborough Manufacturing Company, L.P., concerns the
classification under the Harmonized Tariff Schedule of the United
States (HTSUS), of certain magnesium ingot "stubs," products of
China or Brazil. A sample was submitted. Our Duty & Refund
Determination Branch will separately address the issue you raise
under subheading 9813.00.05, HTSUS, a provision for articles
admitted temporarily free of duty under bond to be repaired,
altered or processed.
FACTS:
The merchandise in issue is described as a "stub," also
called an "ear". It is a small raised portion at the top of a
prime magnesium ingot by which the ingot is held in a locking
device which mechanically feeds the ingot into grinding machinery
to produce granules. As there are no means for introducing these
small stubs into the grinder, after release from the locking
device they are accumulated for subsequent disposal. The
submitted sample is thicker at one end and bears the marks of the
grinder blades. It measures 2 1/2 inches x 1 3/4 inches x 1 3/4
inches, and weighs between 6-7 ounces. A Chinese inspection test
report, dated January 4, 1998, on the ingot from which the sample
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stub came confirms it is 99.8 percent magnesium, by weight, with
the remainder being trace elements. An ingot typically weighs 35
pounds.
You contend that the "stubs" are waste and scrap under
subheading 8104.20.00, HTSUS, because they conform to the tariff
definition of Waste and scrap in Section XV, Note 8(a), HTSUS.
You state that because stubs are aggregated with other scrap
inputs of magnesium from different sources, they are considered
secondary magnesium with a lower market value than prime
magnesium.
The provisions under consideration are as follows:
8104 Magnesium and articles thereof:
Unwrought magnesium:
8104.11.00 Containing at least 99.8 percent by weight of magnesium
8104.19.00 Other
* * * *
8104.20.00 Waste and scrap
ISSUE:
Whether magnesium stubs, as described, are waste and scrap
under subheading 8104.20.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding, and therefore
not dispositive, the ENs provide a commentary on the scope of
each heading of the Harmonized System and are thus useful in
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ascertaining the classification of merchandise under the System.
Customs believes the ENs should always be consulted. See T.D.
89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Section XV, Additional U.S. Note 1, HTSUS, in part defines
"unwrought" to include ingots and similar manufactured primary
forms. Section XV, Note 8(a), HTSUS, defines Waste and scrap to
include metal 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.
The term Waste and scrap is not further defined in any legal
note, or in the 8104 ENs. However, with regard to magnesium
waste and scrap, these ENs state, at p. 1187, that this group
includes raspings, turnings and granules which have not been
graded or sorted according to size. The ENs also state that the
heading 72.04 ENs apply by appropriate substitution of terms.
The 72.04 ENs state, at p. 1076, that the heading excludes
articles which, with or without repair or renovation, can be
reused for their former purposes or can be adapted for other
uses; it also excludes articles which can be refashioned into
other goods without first being recovered as metal.
The stubs remain 99.8 percent magnesium, by weight, albeit
with altered dimensions. They are suitable for the same uses as
sound ingots with the same metallurgy. Nonstructural uses of
magnesium include its application as an alloying element in
aluminum, zinc, lead and certain other nonferrous alloys. It is
used as an oxygen scavenger and desulfurizer in the manufacture
of nickel and copper alloys, and as a reducing agent in the
production of titanium and zirconium. Magnesium finds some use
in pyrotechnics, and is also used for the cathodic protection of
other of other metals from corrosion and in the construction of
dry-cell batteries. See Metals Handbook, Vol. 1, 8th. Ed.
(1961), pp. 1067-1068. The magnesium stubs in issue do not
qualify as waste and scrap of subheading 8104.20.00, HTSUS. They
are primary manufactured forms similar to ingots and, therefore,
are unwrought for tariff purposes.
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HOLDING:
Under the authority of GRI 1, the magnesium stubs, as
described, are provided for in heading 8104. They are
classifiable in subheading 8104.11.00, HTSUS, as unwrought
magnesium.
Sincerely,
John Durant, Director
Commercial Rulings Division