CLA-2 RR:CR:GC 967675 JAS
Port Director, U.S. Customs and Border Protection
P.O. Box 52-3215 Miami, FL 33122-3215
RE: Protest 5201-01-101008; Gold Dore
Dear Port Director:
This is our decision on Protest 5201-01-101008, filed by counsel on behalf of Metalor USA Refining Corp., against your classification of gold dore under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
The goods were entered under subheading 9817.00.9080, HTSUSA, as unwrought metal including remelt scrap ingot. U.S. Customs and Border Protection (CBP) reclassified the goods under subheading 7108.12.1020, HTSUSA, as unwrought gold dore and liquidated the entries on August 31, 2001 under this provision. This protest was timely filed on November 29, 2001.
FACTS:
The merchandise at issue is invoiced as gold dore, unwrought, nonmonetary. Though sometimes referred to as gold dore bar, the product is actually an ingot cast from molten gold, 90% pure, with the remainder of base and/or precious (often silver) metals. After importation, the ingot is refined to remove most of the base metal content, thus achieving the 99.5% level of purity required to be legally traded on the gold markets. The product is sold to banks and financial institutions where it is typically minted into coins and medallions and to industrial customers for remelting and use in various applications.
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The HTSUS provisions under consideration are as follows:
Gold (including gold plated with platinum) unwrought
or in semimanufactured forms, or in powder form:
Nonmonetary
7108.12 Other unwrought forms:
7108.12.10 Bullion and dore
* * * * *
Unwrought metal including remelt scrap ingot…in the
form of pigs, ingots or billets…which are defective or
damaged, or have been produced from melted down
metal waste and scrap for convenience in handling
and transportation without sweetening, alloying,
fluxing or deliberate purifying, and which cannot be
commercially used without remanufacture…; and
articles of metal (…not including unwrought metal
provided for in chapters 72-81) to be used in
remanufacture by melting…:
* * *
9817.00.90 Other
ISSUE:
Whether the merchandise is an unwrought product for purposes of heading 7108; whether it qualifies under subheading 9817.00.90.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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.
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Chapter 71, Additional U.S. Note 1(a), HTSUS, states that for the purposes of subchapter II (precious metals and metals clad with precious metals) the term “unwrought” refers to metals, whether or not refined, in the form of ingots, blocks, lumps, billets, cakes, slabs, pigs, cathodes, anodes, briquettes,
cubes, sticks, grains, sponge, pellets, shot and similar manufactured primary forms, but does not cover rolled, forged, drawn or extruded products, tubular products or cast or sintered forms which have been machined or processed otherwise than by simple trimming, scalping or descaling.
Chapter 98, U.S. Note 1, HTSUS, states that the provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.
Initially, CBP rejected the entered classification on the basis that gold dore is not described in heading 9817 which covers base metal scrap and not precious metal scrap such as gold and silver. Counsel agrees that the liquidated provision in subheading 7108.12.10, HTSUS, is appropriate. However, he continues to assert the applicability of the entered provision as, by its terms, heading 9817 is not limited to base metals but includes precious metals as well.
Heading 9817, HTSUS, encompasses three categories of goods: unwrought metal including remelt scrap ingot in the form of pigs, ingots or billets, relaying or rerolling rails and, with certain stated exceptions not relevant here, articles of metal to be used in remanufacture by melting or to be processed by shredding, shearing, compacting or similar processing which renders them fit only for the recovery of the metal content. It is this last category which counsel maintains covers the instant merchandise.
Subheading 9817.00.90, articles of metal to be used in remanufacture by melting, is an actual use provision subject to section 54.5(a), CBP Regulations (19 CFR 54.5(a)). This provision states, in relevant part, that except as otherwise provided in this section, articles predominating by weight of metal to be used in remanufacture by melting or to be processed by shredding, shearing, compacting, or similar processing which renders them fit only for the recovery of the metal content, and actually so used, shall be entitled to free entry upon compliance with section 54.6 [CFR] if entered, or withdrawn from warehouse for consumption, during the effective period of subheading 9817.00.90, HTSUS. The unwrought gold dore is eligible under subheading 9817.00.90, HTSUS.
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HOLDING:
Under the authority of GRI 1, the unwrought gold dore is provided for in heading 7108. It is classifiable in subheading 7108.12.1012, HTSUSA. However, the merchandise is eligible for classification in subheading 9817.00.9080, HTSUSA, free of duty, as indicated. The protest should be ALLOWED under this provision upon compliance with the law and all applicable CBP regulations.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division