HQ 951568

July 27, 1992

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

CATEGORY: Classification

TARIFF NO.: 8102.91.10

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