CLA-2 CO:R:C:G 088517 NLP
Mr. Carl R. Soller
Mr. William Shayne
Soller, Shayne & Horn
No. 10 The Mews
421 Hudson Street
New York, New York 10014
RE: Lead micro shot; lead powders; Heading 7801; Explanatory
Note 78.04; Explanatory Note 74.06; Explanatory Note
74.03; Note 6(b) to Section XV; Additional U.S. Note 2 to
Dear Mr. Soller and Mr. Shayne:
This is in response to your letters dated January 2, 1991,
and November 27, 1991, on behalf of your client, Non-Ferrous
Traders, Inc., requesting the tariff classification of lead
"micro shot" under the Harmonized Tariff Schedule of the United
The product in question is described as 99.97% lead "micro
shot". It is produced in a spherical form from molten lead. The
resulting spheres, which range in size from 0.1 to 0.5 mm in
diameter, are very carefully sieved to guarantee strict
uniformity of size.
You state that producers of leaded steel alloys use lead in
the form of "micro shot" because of the physical properties
specific to that form. The "micro shot" must be injected
pneumatically into the molten steel, into which it must disburse
evenly and be instantly absorbed to produce a uniform alloy. The
"micro shot" particles are spherical, so that they slide smoothly
against one another. They do not clog the injectors, nor do they
tend to cake or lump together when introduced into the molten
Is the lead "micro shot" classifiable as lead powders and
flakes in subheading 7804.20.00, HTSUS, or as unwrought lead in
subheading 7801.99.90, HTSUS.
LAW AND ANALYSIS:
The competing headings are the following:
7801 Unwrought lead
7804 Lead plates, sheets, strip and foil; lead
powders and flakes
Additional U.S. Note 2 to Section XV, HTSUS, which includes
Chapter 78, states the following in pertinent part:
For the purposes of this section, 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....
The Harmonized Commodity Description and Coding System
(HCDCS) Explanatory Notes for the HTS are not dispositive, but
they provide a commentary on the scope of each heading and offer
guidance for the interpretation of the HTSUS. H. Conf. Rep. No.
576, 100th Cong., 2d Sess., 549 reprinted in 1988 U.S. CODE CONG.
& ADMIN. NEWS 1582. HCDCS Explanatory Note 78.04, page 1074,
states, in pertinent part, that "[t]he heading also covers lead
powders as defined in Note 6(b) to Section XV and lead flakes.
The provisions of the Explanatory Note to heading 74.06 apply,
mutatis mutandi, to this heading."
Heading 7406, HTSUS, provides for copper powder and flakes.
HCDCS Explanatory Note 74.06, page 1046, provides that this
heading does not cover copper shot of heading 7403, HTSUS, which
provides for refined copper and copper alloys unwrought. HCDCS
Explanatory Note 74.03, page 1044, states that "Refined copper
may also be in the form of shot mainly used for alloying purposes
and sometimes for grinding into powder. Copper powder and flakes
are, however, classified, in heading 74.06." Therefore, the
HTSUS makes it clear that powder and shot are two different
products that are classified separately.
It is your position that the lead "micro shot" is considered
shot based on its function, method of manufacture and spherical
shape. Pursuant to Additional U.S. Note 2 to Section XV, HTSUS,
shot is considered unwrought and as such, the subject
lead "micro shot" should be classified in heading 7801, HTSUS.
Moreover, as the "micro shot" is considered an unwrought lead
product, Customs need not apply the definition of powder in Legal
Note 6(b) to Section XV, HTSUS, to this product. According to
this argument, Customs need only apply the definition of powder
when dealing with a wrought item.
We disagree with this interpretation. In determining the
classification of products under the HTSUS, we look to the
General Rules of Interpretation (GRI's). GRI 1 requires that
classification be determined first according to the terms of the
headings of the tariff and any relative section or chapter notes
and, unless otherwise required, according to the remaining GRI's,
taken in order. Therefore, in determining the classification of
the lead "micro shot", we cannot just state that it is shot and
is considered an unwrought product classified in heading 7801,
HTSUS. Whether an item is shot or powder is determined on the
basis of definitions provided in the legal notes to Section XV
and Chapter 78 of the HTSUS. Thus, if the instant lead "micro
shot" meets the definition of powders in Legal Note 6(b) to
Section XV, HTSUS, it would be classified in heading 7804, HTSUS.
See, Headquarters Ruling Letter 950031, dated November 13, 1991.
It is also your argument that the spherical shape of the
"micro shot" distinguishes it from powder. The HCDCS Explanatory
Notes to heading 7406 provide that powder can be spherical.
HCDCS Explanatory Note 74.06, page 1045, states in pertinent
The method of manufacture determines such characteristics
as the particle size and shape (which may be more or less
irregular, globular, spherical or lamellar). Emphasis
Furthermore, none of the characteristics which you attribute to
lead powder are included in the definition of the term "powder".
Powders are defined according to their size and not whether they
tend to cake and lump, or would not disperse evenly to produce a
Legal Note 6(b) to Section XV, HTSUS, describes powders as
products of which 90 percent or more by weight passes through a
sieve having a mesh aperture of 1 mm. In the instant case, a
laboratory analysis was performed on our sample of the "micro
shot". According to the laboratory report, 100 percent by weight
of the "micro shot" passed through a sieve having a mesh aperture
of 1 mm. Thus, the "micro shot" meets the HTSUS definition of
powder and it is classified in heading 7804, HTSUS.
The lead "micro shot" is classified in subheading
7804.20.00, HTSUS, which provides for lead powders and flakes.
The rate of duty is 11.25 percent ad valorem.
John Durant, Director
Commercial Rulings Division