CLA-2 RR:CR:GC 960658 JAS
Mr. Alvin Silvey
A. Burghart Shipping Co., Inc.
One Cross Island Plaza, Suite 113
Rosedale, N.Y. 11422
RE: NY B83407 Affirmed; Broken Tungsten Bars; Tungsten Metal Powder Sintered into Bars, Broken Bars; By-Product of Production of Tungsten Bars; Bars Suitable for Production of
Tungsten Wire; Unwrought Tungsten; Subheading 81081.91.10, Waste and Scrap, Section XV, Note 8(a), Additional U.S. Note 1; 81.01 Explanatory Notes; Anval Nyby Powder AB v. United States; HQ 951568, HQ 960894
Dear Mr. Silvey:
In a letter, dated June 30, 1997, you request
reconsideration of a ruling issued to you on the classification
under the Harmonized Tariff Schedule of the United States
(HTSUS), of broken tungsten bars, products of Germany.
In NY B83407, issued to the A. Burghart Shipping Co., Inc.
on April 10, 1997, by the Chief, National Commodity Specialist
Division, certain sintered tungsten bars that were unsuitable for
the production of tungsten wire, were held to be classifiable as
unwrought tungsten, in subheading 8101.91.50, HTSUS.
The process first involves the production of tungsten metal
powder from tungsten hydroxide in special reduction furnaces.
The powder is then placed in molds and pressurized, after which
it is agglomerated into bars by sintering. Some bars break
during the sintering process. Incomplete burning in the
sintering furnaces may result in some bars with specifications
that make them unsuitable for further production into tungsten
wire. These bars are broken up and resemble the bars that break
during processing. Both types of bars are the subject of this
- 2 -
inquiry. A letter from the seller, dated April 18, 1996,
describes the merchandise, in part, as follows "CP tungsten in
form of hard sintered bars, size approx. 20 x 20 mm x 150-200 mm
length, containing 99.9 % W (tungsten)."
You state that both types of broken bars will be sold in the
United States at the weights and prices consistent with those of
remelt scrap. You also note that both types are by-products of
the production of tungsten bars suitable for processing into
tungsten wire. For these reasons you conclude that subheading
8101.91.10, HTSUS, a provision for tungsten waste and scrap, is
the correct classification.
The provisions under consideration are as follows:
8101 Tungsten (wolfram) and articles thereof, including waste and scrap:
8101.91 Unwrought tungsten, including bars and
rods obtained simply by sintering;
waste and scrap:
8101.91.10 Waste and scrap
Whether sintered, broken up tungsten bars are similar
manufactured primary forms under Section XV, Additional U.S. Note
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
- 3 -
not dispositive, the ENs provide a commentary on the scope of
each heading of the Harmonized System and are thus useful in
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, Note 8(a), HTSUS, defines Waste and scrap as
"Metal waste and scrap from the manufacture or mechanical working
or metals, and metal goods definitely not usable as such because
of breakage, cutting-up, wear or other reasons." Section XV,
Additional U.S. Note 1, HTSUS, states, in relevant part, that for
the purposes of Section XV 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 sintered forms which have been processed otherwise than
by simple trimming, scalping or descaling.
Heading 8101 provides for tungsten and articles thereof,
including waste and scrap. At the 8101.91 subheading level,
unwrought tungsten and tungsten waste and scrap are separated by
a semicolon. This is an indication that they are intended to be
separate, distinct classes of merchandise. Thus, if the broken
sintered tungsten bars under consideration are unwrought forms of
tungsten under subheading 8101.91.50, they cannot be considered
waste and scrap under subheading 8101.91.10.
Bars are not among the exemplars listed in Section XV,
Additional U.S. Note 1, HTSUS. However, the tungsten bars are to
be regarded as unwrought forms of tungsten if they are
manufactured primary forms similar to the exemplars listed in
Section XV, Additional U.S. Note 1. This issue was addressed in
Anval Nyby Powder AB v. United States, Slip Op. 96-80 (Ct. Int'l
Trade, decided May 21, 1996). In the context of cobalt alloy
powders used in plasma arc welding and thermal spraying or
coating applications, the Court concluded that the phrase
"manufactured primary forms" in Additional U.S. Note 1 refers to
forms that "have undergone some processing but must undergo
further processing before they appear in an eventual final
product. This definition provides a unifying characteristic for
the otherwise disparate enumerated forms." In concluding that
the cobalt alloy powders were manufactured primary forms similar
to the ones enumerated in the cited legal note, the Court noted
that the cobalt powder used in both applications must first be
melted to form a solid mass, either in the shape of the weld (in
a plasma arc welding application) or the shape of a valve or
other article to be coated (in a thermal spraying application). - 4 -
In neither case was the powder itself a final good. It was later
processed so as to become a part of or subsumed into a finished
good, and that apart from that finished good, the powder had no
Like molybdenum and vanadium, tungsten is a necessary
alloying element used in tool steels, superalloys, and refractory
alloys. As such, the tungsten bars must undergo further
processing which changes their form or shape before they become
part of a finished good. For example, tungsten is used as an
alloying element to make intermediate alloy steel for cutting
tools in which extreme wear resistance and the ability to retain
a smooth cutting edge on light cuts is required. In this
application the tungsten bars must necessarily change from a
solid to an intermediate molten state which does not possess the
dimensional features of bars. Anval Nyby, at p. 46. The broken
sintered tungsten bars are not themselves a final product.
Ultimately, they become a part of or are subsumed into a finished
good, i.e., a high speed cutting tool. Apart from the finished
good they have no apparent utility.
This conclusion is supported by heading 8101 ENs which state
in part, at p. 1184, that tungsten of that heading may be in the
form of unwrought metal, e.g., in blocks, ingots, sintered bars
and rods, or as waste and scrap (for the latter, see the EN to
heading 72.04). The referenced EN states that heading 72.04
excludes waste and scrap which can be adapted for other uses or
refashioned into other goods without first being recovered as
metal. Thus, sintered tungsten bars unsuitable for use in making
tungsten wire, but used as an alloying element in steel for high
speed cutting tools, is not waste and scrap for tariff purposes.
For these reasons, we remain of the opinion that the broken
sintered tungsten bars are manufactured primary forms similar to
the exemplars listed in Section XV, Additional U.S. Note 1,
HTSUS. The bars constitute unwrought tungsten for tariff
purposes. Substantially similar issues were considered in HQ
951568, dated July 27, 1992, and in HQ 960894, dated October 8,
1997, in which molybdenum bar ends were held to be unwrought
molybdenum for tariff purposes.
- 5 -
Under the authority of GRI 1, the broken sintered tungsten
bars are provided for as unwrought tungsten, in heading 8101.
They are classifiable in subheading 8101.91.50, HTSUS. NY
B83407, dated April 10, 1997, is affirmed.
John Durant, Director
Commercial Rulings Division