CLA-2 OT:RR:CTF:TCM H230127 MG
Port Director, Service Port
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, NJ 07102
Attn: Laura Young, Supervisory Import Specialist
RE: Internal Advice; Classification of Tungsten Concentrates
Dear Port Director:
The following is in response to your memorandum, dated May 21, 2012, requesting Internal Advice in accordance with 19 CFR 177.11 (b)(4), concerning the proper classification of tungsten concentrates, under the Harmonized Tariff Schedule of the United States (HTSUS) initiated by letter, dated July 15, 2011, by Hogan Lovells, LLP, on behalf of its client, Global Tungsten & Powders Corporation (“GTP”).
FACTS:
The merchandise at issue consists of tungsten concentrates entered between August 1, 2008 and September 30, 2013. Certain samples were sent to the Customs and Border Protection (CBP) laboratory for testing. However, the samples were taken from the entries at issue in this IA.
On March 29, 2012, CBP Laboratory Reports # NY20120121, NY20120122, and NY20120123 were issued on samples of black tungsten granules (Lot No. BS2813, DA20111107, and DA20111106, respectively) described as tungsten concentrates. The laboratory reports states as follows:
NY20120121: The laboratory analyses indicate that the sample’s major component is the mineral iron tungsten oxide (ferberite) and is a tungsten concentrate. The average concentration of tungsten oxide is 72.87 by weight.
NY20120122: The laboratory analyses indicate that the sample is mineral calcium tungsten oxide (scheelite) and is a tungsten concentrate. The average concentration of tungsten oxide is 60.09 by weight.
NY20120123: The laboratory analyses indicate that the sample is mineral calcium tungsten oxide (scheelite) and is a tungsten concentrate. The average concentration of tungsten oxide is 61.34 by weight.
ISSUE:
Whether the tungsten concentrates at issue are classified as tungsten concentrates under subheading 2611.00.60, HTSUS, or as tungsten ores under subheading 2611.00.30, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the
HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.
The HTSUS subheadings under consideration are as follows:
2611.00 Tungsten ores and concentrates:
2611.00.30.00 Ores
2611.00.60.00 Concentrates
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In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
There is no dispute that the merchandise is classifiable in heading 2611, HTSUS. As this dispute concerns the proper tariff classification of merchandise in the subheadings of heading 2611, HTSUS, GRI 6 applies.
The terms of the heading 2611 provide for tungsten ore and concentrates. The ENs to Chapter 26 state that Headings 26.01 to 26.17 are limited (emphasis in text) to metallic ores and concentrates. The ENs define ores and concentrates in pertinent part as follows:
The term “ores” applies to metalliferous minerals associated with the substances in which they occur and with which they are extracted from the mine; it also applies to native metals in their gangue (e.g., metalliferous sands).
...
For the purposes of headings 26.01 to 26.17, the term “concentrates” applies to ores which have had part or all of the foreign matter removed by special treatments, either because such foreign matter might hamper subsequent metallurgical operations or with a view to economical transport.
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Absent contrary legislative intent, HTSUS terms are to be “construed (according) to their common and popular meaning.’” Baxter Healthcare Corp. v. United States, 182 F.3d 1333, 1337 (Fed. Cir. 1999). “Courts may rely upon their own understanding of terms and/or consult dictionaries, encyclopedias, scientific authorities, and other reliable information.” Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988); BASF Corp. v. United States, 798 F. Supp. 2d 1353, 1357 (2011).
In addition to the definitions in the ENs cited above, a plethora of scientific information exists. The Kirk-Othmer Encyclopedia of Chemical Technology, the percentage of tungsten oxide in a tungsten concentrate ranges between 60 and 75 percent, which constitutes a substantial amount. On the other hand, tungsten ores contain only 0.3 to 1.5 percent of tungsten oxide. See, Kirk-Othmer Encyclopedia of Chemical Technology, 4th edition, Volume 24, page 576 (John Wiley & Sons, 1997). According to the Encyclopedia of Industrial Chemical Analysis, ores, at best, contain 2 to 3 percent tungsten oxide and concentrates contain at least 60 percent of tungsten oxide. See, Encyclopedia of Industrial Chemical Analysis, Volume 19, page 195 (Interscience Publishers, John Wiley & Sons, 1974)
This is consistent with information found in another scientific encyclopedia, which states that that tungsten concentrates (depending upon the tungsten ore which being processed) generally contain 60 to 70 percent or 60 to 65 percent tungsten oxide. This source further indicates that most tungsten ores contain less than 1.5 percent tungsten oxide. See, Ullmann’s Encyclopedia of Industrial Chemistry, 6th edition, Volume 37, pages 527-528 (John Wiley & Sons, 2000).
As noted by the above-cited sources, the difference between the percentage of tungsten oxides (or tungsten metal) in a tungsten ore and the percentage of tungsten oxides (or tungsten metal) in a tungsten concentrate is significant. Hence, tungsten ores contain below 5% tungsten oxide and classification as a concentrate should be considered on a case by case basis for tungsten oxide above that amount. CBP administers and interprets the HTSUS. Therefore, whether this determination potentially results in a decrease in the number of entries of ores is not something over which CBP has control, as legal provisions for duty rates are set by Congress.
In the instant case, GTP states that it requires, by contract, a minimum assay of 65 percent of tungsten oxide for all imported tungsten concentrates. While some of the entries at issue may not have a minimum of 65 percent of tungsten oxide, there is no evidence or allegation that any of the entries contracted was 5% or less of tungsten oxide. Therefore, the merchandise at issue in this request for internal advice is classified under subheading 2611.00.60, HTSUS, which provides for: “Tungsten ores and concentrates: Concentrates.” The column one, general rate of duty is 37.50/kg on tungsten content.
This request for internal advice raises another issue involving CBP regulations regarding the sampling of the merchandise. Specifically, the request inquires whether samples must be taken on every entry. In 19 C.F.R. § 151.51, Part 151 of Subpart D of CBP Regulations (19 C.F.R. §151), 19 C.F.R. §151.51-55 sets forth the sampling requirements, procedures, safe keeping of samples, testing and deductions for loss during processing for metal-bearing ores and other metal-bearing materials of Chapter 26, HTSUS. These regulations require that CBP obtain samples from every shipment. See, 19 C.F.R. §151.51-55. When commercial samples cannot be taken under CBP supervision, the importer is required to furnish a verified commercial moisture sample and prepared assay sample certified to be representative of the shipment, pursuant to 19 C.F.R. 151.52 (b). 19 C.F.R. 151.51 has not been waived or rescinded and should be enforced and followed at the ports.
HOLDING:
The merchandise at issue in this request for internal advice is classified under subheading 2611.00.60, HTSUSA, which provides for: “Tungsten ores and concentrates: Concentrates.” The column one, general rate of duty is 37.50/kg on tungsten content.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
The importer states that in 1991, the International Trade Commission decided Tungsten Ores and Concentrates from the People’s Republic of China, Inv. No. 731-TA-479 (Final), USITC Pub. 2447 (Nov. 1991), an antidumping case on Tungsten Ores and Concentrates from China. We note that whether the merchandise at issue is subject to anti-dumping orders is beyond the administrative authority of CBP. CBP is not charged with the administrative authority to ascertain nor impose antidumping orders. Such authority is within the purview of the ITA, who is not necessarily bound by a country of origin or classification determination issued by CBP with regard to the scope of antidumping orders or countervailing duties. Written decisions regarding the scope of AD/CVD orders are issued by the ITA and are separate from tariff classification and origin rulings issued by CBP. You may contact ITA at 1-800 USA-TRAD(E). For further information, you can also view a list of current AD/CVD cases at the United States International Trade commission website at www.usitc.gov (click on “Antidumping and Countervailing Duty Investigations”), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at www.cbp.gov (Click on “Import” and “AD/CVD”).
You are to mail this decision to the importer of record no later than 60 days from the date of the decision. At that time, the Office of International Trade, 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