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HQ 961439

JULY 30, 1998

CLA-2 RR:CR:GC 961439 JAS


TARIFF NO.: 8104.11.00

Mr. Roy F. Knapp, Jr.
Consultech Incorporated
18837 Palm Circle
Fairview Park, Ohio 44126

RE: Magnesium Ingot Stub; Ears; Unwrought Magnesium, Ingot; Waste and Scrap, Heading 8104; Top Portion by which Primary Magnesium Ingot is Mechanically Fed into a Grinding Machine; Waste and Scrap, Section XV, Note 8(a), HTSUS; "unwrought" Section XV, Additional U.S. Note 1, HTSUS; Metals Handbook

Dear Mr. Knapp:

Your letter, dated February 16, 1998, on behalf of Rossborough Manufacturing Company, L.P., concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain magnesium ingot "stubs," products of China or Brazil. A sample was submitted. Our Duty & Refund Determination Branch will separately address the issue you raise under subheading 9813.00.05, HTSUS, a provision for articles admitted temporarily free of duty under bond to be repaired, altered or processed.


The merchandise in issue is described as a "stub," also called an "ear". It is a small raised portion at the top of a prime magnesium ingot by which the ingot is held in a locking device which mechanically feeds the ingot into grinding machinery to produce granules. As there are no means for introducing these small stubs into the grinder, after release from the locking device they are accumulated for subsequent disposal. The submitted sample is thicker at one end and bears the marks of the grinder blades. It measures 2 1/2 inches x 1 3/4 inches x 1 3/4 inches, and weighs between 6-7 ounces. A Chinese inspection test report, dated January 4, 1998, on the ingot from which the sample
stub came confirms it is 99.8 percent magnesium, by weight, with the remainder being trace elements. An ingot typically weighs 35 pounds.

You contend that the "stubs" are waste and scrap under subheading 8104.20.00, HTSUS, because they conform to the tariff definition of Waste and scrap in Section XV, Note 8(a), HTSUS. You state that because stubs are aggregated with other scrap inputs of magnesium from different sources, they are considered secondary magnesium with a lower market value than prime magnesium.

The provisions under consideration are as follows:

8104 Magnesium and articles thereof:

Unwrought magnesium:

8104.11.00 Containing at least 99.8 percent by weight of magnesium

8104.19.00 Other

8104.20.00 Waste and scrap


Whether magnesium stubs, as described, are waste and scrap under subheading 8104.20.00, HTSUS.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in
ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Section XV, Additional U.S. Note 1, HTSUS, in part defines "unwrought" to include ingots and similar manufactured primary forms. Section XV, Note 8(a), HTSUS, defines Waste and scrap to include 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.

The term Waste and scrap is not further defined in any legal note, or in the 8104 ENs. However, with regard to magnesium waste and scrap, these ENs state, at p. 1187, that this group includes raspings, turnings and granules which have not been graded or sorted according to size. The ENs also state that the heading 72.04 ENs apply by appropriate substitution of terms. The 72.04 ENs state, at p. 1076, that the heading excludes articles which, with or without repair or renovation, can be reused for their former purposes or can be adapted for other uses; it also excludes articles which can be refashioned into other goods without first being recovered as metal.

The stubs remain 99.8 percent magnesium, by weight, albeit with altered dimensions. They are suitable for the same uses as sound ingots with the same metallurgy. Nonstructural uses of magnesium include its application as an alloying element in aluminum, zinc, lead and certain other nonferrous alloys. It is used as an oxygen scavenger and desulfurizer in the manufacture of nickel and copper alloys, and as a reducing agent in the production of titanium and zirconium. Magnesium finds some use in pyrotechnics, and is also used for the cathodic protection of other of other metals from corrosion and in the construction of dry-cell batteries. See Metals Handbook, Vol. 1, 8th. Ed. (1961), pp. 1067-1068. The magnesium stubs in issue do not qualify as waste and scrap of subheading 8104.20.00, HTSUS. They are primary manufactured forms similar to ingots and, therefore, are unwrought for tariff purposes.


Under the authority of GRI 1, the magnesium stubs, as described, are provided for in heading 8104. They are classifiable in subheading 8104.11.00, HTSUS, as unwrought magnesium.


John Durant, Director
Commercial Rulings Division

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