CLA-2 CO:R:C:M 951568 KCC

Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 762
New York, New York 10048-0945

RE: Protest No. 1001-92-100134; Molybdenum bar ends; GRI 1; Note 6(a) to Section XV; waste and scrap; Additional U.S. Note 2 to Section XV; unwrought

Dear Sir:

This is in response the Application for Further Review of Protest No. 1001-92-100134 dated January 6, 1992, which pertains to the tariff classification of molybdenum bar ends under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is described as molybdenum bar ends which measure approximately one inch by one inch by 15 inches. The protestant, Hi-Temp Specialty, Inc., describes the manufacturing process of the molybdenum bar end as follows:

1. molybdenum powder is pressed into bar form; 2. the bars are sintered in a hydrogen atmosphere to remove oxygen and harden the material; 3. the bars are heated; 4. the bars are straightened; and 5. the ends are cut from manufactured molybdenum bars.

Upon importation, the entry of the molybdenum bar ends was liquidated under subheading 8102.91.10, HTSUS, which provides for "Molybdenum and articles thereof, including waste and scrap...Other...Unwrought molybdenum, including bars and rods obtained simply by sintering; waste and scrap...Unwrought." This classification was based on an analysis of the merchandise in U.S. Customs Laboratory in Report No. 2-91-21174-001 dated March 18, 1991. The laboratory report determined that the sample, a clean bar measuring 2.4 cm by 2.4 cm and 33 cm in length, was molybdenum metal. It determined that the sample was sintered and in primary form.

The protestant contends that the molybdenum bar ends are properly classified under subheading 8102.91.50, HTSUS, which provides for "Molybdenum and articles thereof, including waste and scrap...Other...Unwrought molybdenum, including bars and rods obtained simply by sintering; waste and scrap...Waste and scrap."

ISSUE:

Are the molybdenum bar ends "unwrought" and, therefore, classified under subheading 8102.91.10, HTSUS, or are they "waste and scrap" and, therefore, classified under subheading 8102.91.50, HTSUS?

FACTS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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...." Heading 8102, HTSUS, falls within Section XV making the Section XV notes applicable to this tariff classification. Note 6(a) to Section XV defines "waste and scrap" as:

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.

Additional U.S. Note 2 to Section XV states that the term "unwrought" refers to:

metal, whether or not refined, in the form of ingots, blocks, lumps, billets, cakes, slabs, pigs, cathodes, anodes, briquettes, cubes, sticks, grains, sponge, pellets, flattened pellets, rounds, rondelles, 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.

We are of the opinion that the molybdenum bar ends are properly classified as unwrought molybdenum under subheading 8102.91.10, HTSUS. Customs Laboratory analysis determined that the bar ends are a manufactured primary form of sintered molybdenum which has not been further machined or processed. Therefore, the molybdenum bar ends met the definition of "unwrought" found in Additional U.S. Note 2 to Section XV.

The protestant contends that the bar ends are waste and scrap because the molybdenum metal is impure and cannot be used for the original purpose for which it was made. The protestant states that the bar ends have excessive levels of tungsten impurities (.09% to .24%), while the American Society for Testing Materials (ASTM) requires that pure molybdenum bars only have undetectable traces of tungsten to be commercially acceptable. We do not find this small difference in percentage controlling for classification purposes. Customs Laboratory analysis indicates that the bar ends are molybdenum metal in primary form. Furthermore, the above percentage differential simply requires that the bar ends be used for a different purpose than that of ASTM molybdenum bars, it does not require that they be classifiable as "waste or scrap". Moreover, this assertion is in conflict with the statement that the bar ends are cut from the same primary bar which is pure molybdenum. Bar ends cut from sintered primary bar cannot have higher tungsten impurity levels than the remainder of the primary bar.

The protestant states that pure molybdenum bars or commercial grade bars, which are flawless with a low level of impurities and capable of passing x-ray tests on their structural integrity, are ordinarily used to be drawn into wire or other wrought molybdenum mill products or used in the manufacture of a wide variety of articles, such as light bulbs or spray plasma wire. Whereas, the sole use of the bar ends is to remelt them for their metal content. However, information gathered by Customs indicates that sintered molybdenum is manufactured in various forms for various uses, i.e., sintered tablets or bars are manufactured for use as addition materials in steel making or for use as rolling stock.

Based on the information gathered, we have determined that the merchandise at issue was produced from molybdenum powder for use as remelt stock in the manufacture of steel making. The merchandise is not considered to be "waste or scrap" because of the size of the shipment and uniform size of the bar ends. Molybdenum is an expensive metal. It would be commercially untenable to continuously produce sintered bars with such a large amount of cut-off. Additionally, the uniform size of the sintered bars in this large shipment is a clear indication that this is not a shipment of cut-off bar ends. Cut-off or crop ends usually occur in random lengths. It would be unrealistic to expect to find such a large number of cut-offs of a uniform size, such as one inch by one inch by 15 inches. Furthermore, the merchandise is not considered to be "waste and scrap" because of the level of impurity. As previously stated, no part of the sintered bars was ever suitable to be rolled into pure molybdenum bars, rods or other products because of the level of tungsten impurities. While the merchandise is not pure enough to be used as rolling stock, it is regarded as high purity for use as addition materials in steel making. As first manufactured, the sintered bars were not suitable for any purpose except remelting.

HOLDING:

The molybdenum bar ends are classified under subheading 8102.91.10, HTSUS, which provides for "Molybdenum and articles thereof, including waste and scrap...Other...Unwrought molybdenum, including bars and rods obtained simply by sintering; waste and scrap...Unwrought." This protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division