CLA-2 OT:RR:CTF:TCM H043010 RM
2825.90.30
2841.80.00
8101.10.00
8101.94.00
Mr. Alvin Silvey
Regency South
3750 Galt Ocean Drive, Apt. 210
Ft. Lauderdale, FL 33308
RE: Classification and NAFTA Eligibility of Certain Tungsten Products
Dear Mr. Silvey:
This is in response to your letter, dated September 19, 2008, to the National Commodity Specialists Division of U.S. Customs and Border Protection (“CBP”) in which you requested a binding ruling regarding the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of certain tungsten products. In addition, you have asked CBP to determine whether some of these products are eligible for duty-free entry into the United States under the North American Free Trade Agreement (“NAFTA”). Your request was forwarded to this office for a response.
FACTS:
The products to be classified are described as:
Tungsten concentrates, produced by concentrating ore to a grade containing about 50% tungsten;
Ammonium paratungstate (“APT”), produced by extracting tungsten from the ore and purifying it in a hydro-metallurgical process;
Tungsten oxide, produced by converting APT to either tungsten trioxide or tungsten blue oxide by reducing the APT in a hydrogen atmosphere furnace;
Tungsten powder, produced by reducing tungsten oxide in a hydrogen atmosphere furnace; and
Tungsten bar, produced by pressing tungsten power into a bar shape and then sintering the product in a hydrogen atmosphere to make it dense.
You propose to import tungsten oxide, powder, and bars, produced under two distinct scenarios. Under the first scenario, tungsten ore mined in China is processed into APT and then shipped to Canada. In Canada, the APT is (1) reduced to tungsten powder or (2) pressed and sintered into tungsten bars. The resulting tungsten powder and bars are exported to the United States. Under the second scenario, tungsten ore is purchased in Canada and sent to a Foreign Trade Zone (“FTZ”) in China, where is it processed into APT and tungsten oxide. The APT and tungsten oxide are then shipped to Canada, where (1) APT is transformed into tungsten oxide, powder, or bars, and (2) tungsten oxide is transformed into tungsten powder or bars. The resulting tungsten oxide, powder, and bars are exported to the United States.
ISSUES:
What is the proper tariff classification of the imported tungsten products under the HTSUS?
Does the imported merchandise qualify for duty-free treatment under NAFTA?
LAW AND ANALYSIS:
Classification
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions at issue are as follows:
2611 Tungsten ores and concentrates:
2611.00.30 Ores …
2825 Hydrazine and hydroxylamine and their inorganic salts; other inorganic bases; other metal oxides, hydroxides and peroxides:
2825.90 Other:
2825.90.30 Tungsten oxides …
2841 Salts of oxometallic or peroxometallic acids:
2841.80.00 Tungstates (wolframates) …
8101 Tungsten (wolfram) and articles thereof, including waste and scrap:
8101.10.00 Powders …
Other:
8101.94.00 Unwrought tungsten, including bars and rods obtained simply by sintering …
You propose the following classifications: (1) tungsten concentrates under heading 2611, in subheading 2611.00.60, HTSUS, as “Tungsten ores and concentrates: Ores”; (2) APT under heading 2841, in subheading 2841.80.00, as “Salts of oxometallic or peroxometallic acids: Tungstates (wolframates)”; (3) tungsten oxide under heading 2825, in subheading 2825.90.30, HTSUS, as “[O]ther metal oxides ...: Other: Tungsten oxides”; (4) tungsten powder under heading 8101, in subheading 8101.10, HTSUS, as “Tungsten (wolfram) and articles thereof …: Powders”; and (5) tungsten bars under heading 8101, in subheading 8101.94.00, HTSUS, as “Tungsten … and articles thereof: Unwrought tungsten, including bars and rods obtained simply by sintering.”
We agree with these proposed classifications because the products are described by these provisions. See Headquarters Ruling Letter (“HQ”) 968077, dated February 14, 2006 (APT classified under heading 2841, HTSUS), HQ 960658, dated October 30, 1997 (tungsten bars classified under heading 8101, HTSUS) and NY C83802, dated January 29, 1998 (tungsten powder and bars classified under heading 8101, HTSUS).
NAFTA Eligibility
You have asked us to address whether tungsten oxide, powder, or bars, manufactured under the two scenarios described in the FACTS section above, are eligible to be entered as goods of a NAFTA country, i.e., Canada.
General Note 12 of the HTSUS incorporates Article 401, North American Free Trade Agreement, as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057) (December 8, 1993) and the interim amendments to the CBP Regulations, published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994), into the HTSUS. General Note 12(b), HTSUS, (19 U.S.C. § 3332) states, in pertinent part, that:
For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if—
(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or (ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that-- (A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, ...
General Note 12(t), provides, in relevant part:
Chapter 28
22. A change to subheadings 2825.10 to 2826.90 from any other subheading, including another subheading within that group.
Chapter 81
A change to subheading 8101.10 through 8110.90 from any other subheading, including another subheading within that group.
Tungsten Oxide
Under both scenarios, wherein non-originating APT (classified in subheading 2841.80.00, HTSUS) is transformed in Canada into tungsten oxide (subheading 2825.90.30, HTSUS), we find that the tungsten oxide undergoes the requisite tariff shift pursuant to General Note 12(t)/28.22.
(ii) Tungsten Powder
Under the first scenario, wherein non-originating APT (subheading 2841.80.00, HTSUS) is transformed in Canada into tungsten powder (subheading 8101.10.00, HTSUS), we find that the tungsten powder undergoes the requisite tariff shift pursuant to General Note 12(t)/81.1. We reach the same conclusion under the second scenario, wherein non-originating tungsten oxide (FTZ) (subheading 2825.90.30, HTSUS) is transformed in Canada into tungsten powder (subheading 8101.10.00, HTSUS).
(iii) Tungsten Bars
Under the first scenario, wherein non-originating APT (subheading 2841.80.00, HTSUS) is transformed in Canada into tungsten bars (subheading 8101.94.00, HTSUS), we find that the tungsten bars undergo the requisite tariff shift pursuant to General Note 12(t)/81.1. We reach the same conclusion under the second scenario, wherein non-originating tungsten oxide (FTZ) (subheading 2825.90.30, HTSUS) is transformed in Canada into tungsten bars (subheading 8101.94.00, HTSUS).
HOLDING:
By application of GRI 1: (1) tungsten concentrates are classified under heading 2611, in subheading 2611.00.60, HTSUS, as “Tungsten ores and concentrates: Ores”; (2) APT under heading 2841, in subheading 2841.80.00, as “Salts of oxometallic or peroxometallic acids: Tungstates (wolframates)”; (3) tungsten oxide under heading 2825, in subheading 2825.90.30, HTSUS, as “[O]ther metal oxides ...: Other: Tungsten oxides”; (4) tungsten powder under heading 8101, in subheading 8101.10, HTSUS, as “Tungsten (wolfram) and articles thereof …: Powders”; and (5) tungsten bars under heading 8101, in subheading 8101.94.00, HTSUS, as “Tungsten … and articles thereof: Unwrought tungsten, including bars and rods obtained simply by sintering.”
The tungsten oxide, powder, and bars, produced according to the two scenarios described above, are eligible for duty-free treatment under NAFTA.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch