Lead Microgranules; lead powders; Heading 7801; Heading 7804; Note 6(b) to Section XV

HQ 950031 November 13, 1991 CLA-2 CO:R:C:M 950031 NLP CATEGORY: Classification TARIFF NO.: 7804.20.00 Mr. John A. Slagle Wolf D. Barth Co., Inc. 7575 Holstein Avenue Philadelphia, PA 19153 RE: Lead Microgranules; lead powders; Heading 7801; Heading 7804; Note 6(b) to Section XV Dear Mr. Slagle: This is in response to your letter dated July 10, 1991, on behalf of your client, Bethlehem Steel Corporation, requesting the tariff classification of lead microgranules under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). FACTS: The product in question is lead microgranules imported from Italy. The lead is transformed from a solid into a molten state which is then poured into a vat with holes in its underside. The molten lead flows into the holes and escapes from the vat drop by drop. The drops fall into a water bath which solidifies them. The granules are then screened for size. The resulting microgranules all pass through a 1 mm sieve. ISSUE: Are the lead microgranules classifiable as lead powder and flakes in subheading 7804.20.00, HTSUSA, or as unwrought lead in subheading 7801.99.90, HTSUSA. LAW AND ANALYSIS: The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. 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. The competing subheadings at issue are the following: 7801.99.90 Unwrought lead, other 7804.20.00 Lead plates, sheets, strip and foil; lead powder and flakes, powder and flakes Additional U.S. Note 2 to Section XV, which includes Chapter 78, states that: 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, although not dispositive, are to be looked to for the proper interpretation of the HTS. Explanatory Note 78.04 of the HCDCS, (page 1074) states that "this 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." If the instant lead microgranules meet the description of powders, they would be classified in heading 7804, HTSUSA. In determining whether the microgranules are unwrought lead or powder for HTSUSA classification purposes, we cannot just state that they fall within the definition of unwrought lead because their form is similar to some of the exemplars noted in Additional U.S. Note 2 to Section XV. We must apply Legal Note 6(b) to Section XV to the instant product before we can determine whether it is a powder or unwrought lead. Therefore, if an article meets the description of powder, it would be considered a powder even though its form may be similar to one of the exemplars noted above. Legal Note 6(b) to Section XV, HTSUSA, describes powders as products which 90 percent or more by weight pass through a sieve having a mesh aperture of 1 mm. Therefore, powder is defined according to the size of its particles and not the shape of its particles. In the instant case, more than 90 percent by weight of the microgranules pass through a sieve having a mesh aperture of 1 mm. Thus, the microgranules are considered a powder for HTSUSA classification purposes and are classified in heading 7804, HTSUSA. HOLDING: The lead microgranules are classified in subheading 7804.20.00, HTSUSA, which provides for lead powders and flakes. The rate of duty is 11.25 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division