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HQ 950313


December 10, 1991

CLA-2 CO:R:C:M 950313 LTO

CATEGORY: CLASSIFICATION LIQUIDATION

TARIFF NO.: 7409.40.00

District Director of Customs
U.S. Customs Service
P.O. Box 20876
Charleston, South Carolina 29413-0876

RE: Protest #1601-0-000270; nickel silver circular discs; 7403.23.00; 7419; EN 74.09; EN 74.19; Chapter 74, Note 1(g); Chapter 74, Subheading Note 1(c); Section XV, additional U.S. Note 2; GRI 2(a); Avins Industrial Products Co. v. United States; HQ 086844; Detroit Zoological Society v. U.S.; Tropicana Products, Inc. v. U.S.; 19 U.S.C. 1501, 1504(a)(b); 19 CFR 159.9 through 159.12

Dear Sir:

This is our response regarding Protest No. 1601-0-000270, dated September 27, 1990, which pertains to the classification of nickel silver circular discs under the Harmonized Tariff Schedule of the United States (HTSUS) and the liquidation of entry, number XX XXXXXXXX, which the protestant claims was not liquidated or extended in a timely manner.

FACTS:

The articles in question are flat, circular discs which have been stamped (or blanked) from rolled sheets of copper-nickel- zinc base alloys. The imported discs consist of 65% copper, 18% nickel and 17% zinc. After importation, they will be processed into casino gaming tokens by rimming, burnishing and striking with dies specific to their end user.

The discs were classified under subheading 7409.40.00, HTSUS, which provides for "[c]opper plates, sheets and strip, of a thickness exceeding 0.15 mm . . . [o]f copper-nickel base alloys (cupro-nickel) or copper-nickel-zinc base alloys (nickel
silver)." The protestant contends that the discs are classifiable under subheading 7403.23.00, HTSUS, which provides for "[r]efined copper and copper alloys, unwrought (other than master alloys of heading 7405) . . . [c]opper alloys . . . ," or, in the alternative, under subheading 7419.91.00, HTSUS, which provides for "[o]ther articles of copper . . . [o]ther." The protestant further contends that the entry was illegally liquidated, and was not timely extended.

ISSUES:

1. What is the proper classification for the nickel silver circular discs under the HTSUS?

2. Was the initial liquidation properly and timely liquidated and reliquidated?

LAW AND ANALYSIS:

1. CLASSIFICATION

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ." Heading 7409, HTSUS, provides for "[c]opper plates, sheets and strip, of a thickness exceeding 0.15 mm." The Harmonized Commodity Description and Coding System Explanatory Note (EN) 74.09, pg. 1047, states that this heading covers the products defined in Chapter 74, note 1(g) when of a thickness exceeding 0.15 mm. Chapter 74, note 1(g) defines plates, sheets and strip as "[f]lat-surfaced products (other than the unwrought products of heading 7403), coiled or not, of solid rectangular (other than square) cross section with or without rounded corners . . . of a uniform thickness, which are . . . of a shape other than rectangular or square, of any size, provided that they do not assume the character of articles or products of other headings." The articles in question fall within this definition. As imported, the articles are flat, circular discs which have been stamped (or blanked) from rolled sheets of copper-nickel-zinc base alloys.

Subheading 7409.40.00, HTSUS, provides for plates, sheets and strip "[o]f copper-nickel base alloys (cupro-nickel) or copper-nickel-zinc base alloys (nickel silver)." The imported discs consist of 65% copper, 18% nickel and 17% zinc. Chapter 74, subheading note 1(c) defines nickel silver as an "[a]lloy[]
of copper, nickel and zinc, with or without other elements. The nickel content is 5 percent or more by weight." Thus, the articles in question are classifiable under subheading 7409.40.00, HTSUS.

The protestant contends that the discs are classifiable under subheading 7403.23.00, HTSUS, which provides for "[r]efined copper and copper alloys, unwrought . . . [c]opper alloys . . . copper-nickel-zinc base alloys (nickel-silver)." Section XV, additional U.S. note 2 states that the term unwrought "does not cover rolled, forged, drawn or extruded products." Because the imported article's manufacturing process involves melting, casting into coils, milling, rolling to finished gauge strip, annealing and blanking into coin blanks, the discs are not "unwrought" and cannot be classified under this subheading.

The protestant also claims, in the alternative, that the discs are classifiable under Heading 7419, HTSUS, which provides for "[o]ther articles of copper." However, EN 74.19, pg. 1052, states that this heading covers all articles of copper other than those covered by the preceding headings of this Chapter . . . [emphasis in original]." As shown above, the discs are classifiable under subheading 7409.40.00, HTSUS, and are, thus, excluded from Heading 7419, HTSUS.

Classification of the nickel silver circular discs according to GRI 2(a) was also considered. GRI 2(a) states that "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article." The Explanatory Notes to GRI 2(a), pg. 2, state that this rule applies to blanks, which it defines as "article[s], not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part." However, the nickel silver circular discs are not "blanks" according to this definition and do not have the essential character of the complete or finished article, because they could, conceivably, be used for completion into articles other than a coin or gaming token. See Avins Industrial Products Co. v. United States, 72 Cust. Ct. 43, C.D. 4503, rehearing denied 72 Cust. Ct. 147, C.D. 4522, aff'd C.A.D. 1150 (1975) (wherein the court stated, with respect to type 302 stainless steel wire, "the fact that the instant merchandise has been cut to length and is in certain dimensions making it particularly adaptable for use in making radio antennas does not
take it out of the category of wire and into that of an unfinished part."); HQ 086844, dated April 17, 1990.

2. LIQUIDATION

With regard to the liquidation issue raised in this protest, we note that the date of the entry under consideration was April 6, 1989. According to Customs records, liquidation of the entry was extended on March 6, 1990, and notice of that extension was sent to the importer of record on March 10, 1990. The reason for the extension was to enable the Customs officer processing the liquidation to obtain information required for the proper classification of the merchandise involved (in this regard, see Detroit Zoological Society v. United States, 10 CIT 133, 138, 630 F. Supp. 1350, 1357 (1986), noting that the Court should ordinarily defer to Customs determination that it needs additional information to liquidate an entry).

Also according to Customs records, on May 2, 1989, information was requested from the importer with regard to the entry. The information was sent to Customs by the Customs officer handling the liquidation on July 6, 1989, and received by that Customs officer on March 16, 1990. A notice of rate advance (Customs Form 29) was sent to the importer on May 15, 1990. The entry was liquidated, as entered, on May 18, 1990, and it was reliquidated on June 29, 1990.

Pursuant to section 504(b), Tariff Act of 1930, as amended (19 U.S.C. 1504(b)), Customs may extend the one-year period (see 19 U.S.C. 1504(a)) in which to liquidate an entry by giving proper notice of the extension if: "information needed for the proper appraisement or classification of the merchandise is not available to the appropriate customs officer." Pursuant to paragraph (d) of section 504, liquidation may be extended up to until four years after entry (see 19 CFR 159.9 through 159.12, for the Customs Regulations on this matter). Pursuant to section 501, Tariff Act of 1930, as amended (19 U.S.C. 1501), a liquidation may be reliquidated "in any respect by the appropriate customs officer on his own initiative . . . within ninety days from the date on which notice of the original liquidation is given to the importer, his consignee or agent [emphasis added]."

In view of the "presumption of regularity" that public officials have discharged their duties in accordance with the applicable laws and regulations (see Tropicana Products, Inc. v. United States, 713 F. Supp. 413, 418 (CIT 1989); aff'd, 909 F. 2d 504 (Fed. Cir. 1990)), and in view of the fact that Customs - 5 -
records show that liquidation of the entry in question was properly extended, that notice of the extension was properly given (see 19 CFR 159.12(b)), and that the initial liquidation was properly and timely reliquidated, this portion of the protest is DENIED.

HOLDING:

1. CLASSIFICATION

The nickel silver circular discs are classifiable within subheading 7409.40.00, HTSUS, which provides for "[c]opper plates, sheets and strip, of a thickness exceeding 0.15 mm . . . [o]f copper-nickel base alloys (cupro-nickel) or copper-nickel- zinc base alloys (nickel silver)." This portion of the protest should be DENIED.

2. LIQUIDATION

Because the initial liquidation was properly and timely reliquidated, this portion of the protest should be DENIED.

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

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