HQ 0953080 - Protest No. 1703-92-100107; Cermets; Tungsten Carbide/Iron; 8101; EN 81.01; EN 81.13; HQ 950929; HQ 951642; HQ 951643; Section XV, Note 6(a); waste, scrap; Consolidated Cork Corp. and Milton Snedeker Corp. v. U.S. - United States International Trade Commision Rulings

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HQ 953080

February 3, 1993

CLA-2 CO:R:C:M 953080 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8113.00.00

District Director
U.S. Customs Service
1-3 E. Bay Street
Savannah, Georgia 31401

RE: Protest No. 1703-92-100107; Cermets; Tungsten Carbide/Iron; 8101; EN 81.01; EN 81.13; HQ 950929; HQ 951642; HQ 951643; Section XV, Note 6(a); waste, scrap; Consolidated Cork Corp. and Milton Snedeker Corp. v. U.S.

Dear Sir:

This is in response to Protest No. 1703-92-100107, dated August 17, 1992, which concerns the classification of tungsten scrap under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The protestant states that the material in question, a dark gray powder, is purchased and sold as tungsten scrap. A sample of this material was provided to Customs, and it was determined by the Savannah Customs Laboratory that the material in question was composed of tungsten carbide and iron [Lab. No. 4-92-21586- 001]. Further, the lab found that the sample's tungsten content was 52 percent. The lab concluded that the sample contained "no tungsten which is not tungsten carbide." The report described a material which has the qualities of a cermet.

The material in question was entered under subheading 8101.91.10, HTSUS, which provides for tungsten (wolfram) waste and scrap. The merchandise was classified upon liquidation under subheading 8101.10.00, HTSUS, which provides for tungsten powder.

ISSUE:

Whether the material in question is the metal tungsten - 2 -
described in heading 8101, HTSUS, and thus classifiable as tungsten powder in subheading 8101.10.00, HTSUS, or tungsten waste or scrap in subheading 8101.91.10, HTSUS, or is it classifiable under the provision for cermets under subheading 8113.00.00, HTSUS.

LAW AND ANALYSIS:

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 . . . ."

The headings at issue are as follows:

8101 Tungsten (wolfram) and articles thereof, including waste and scrap

8113 Cermets and articles thereof, including waste and scrap

Note 6(a) to Section XV defines the term waste and scrap as "[m]etal 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." Both of the headings under consideration provide for waste and scrap.

However, the Harmonized Commodity Description and Coding System Explanatory Notes, pg. 1089, state that Chapter 81 is limited to base metals, such as tungsten (wolfram) (heading 8101), their alloys and articles thereof, and that the chapter also covers cermets (heading 8113). EN 81.01, pg. 1090, states that the tungsten of heading 8101, HTSUS, "is a dense, steel- grey metal, with a high melting point. It is brittle, hard and has a high resistance to corrosion." The note further states that the most important use of tungsten is in the preparation of special steels, and that it is also used in the preparation of tungsten carbide. EN 81.01 states that tungsten carbide is excluded from heading 8101, HTSUS.

Based on a sample provided by the protestant, the Savannah Customs Laboratory determined that the material in question is a carbide, which is a compound and not a base metal. Thus, the material is not provided for in heading 8101, HTSUS. See HQ 951642, dated May 1, 1992; HQ 951643, dated May 15, 1992.

EN 81.13, pg. 1099, states that the cermets of heading 8113, HTSUS, contain both a ceramic constituent and a metallic constituent. The ceramic constituent usually consists of a carbide, among other compounds, while the metal component consists of a powdered metal, such as, iron, nickel, aluminum, chromium or cobalt. The material in question is a dark gray powder composed of tungsten carbide and iron. Accordingly, it is classifiable as a cermet under subheading 8113.00.00, HTSUS.

The 161 drums of the material in question were invoiced as "tungstene [sic] scrap." The protestant claims that a test performed on a sampling of only one of these drums cannot represent the entire shipment. This contention is without merit. The United States Customs Court has held that "[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct." Consolidated Cork Corp. and Milton Snedeker Corp. v. United States, C.D. 2512, pg. 85 (1965). Thus, the Customs laboratory's test on the sample taken from one of the 161 drums, in the absence of evidence that rebuts the results obtained (for example, an independent laboratory report), is presumed to be correct for classification purposes. See HQ 950929, dated March 31, 1992.

HOLDING:

The material in question is classifiable under subheading 8113.00.00, HTSUS, which provides for "[c]ermets and articles thereof, including waste and scrap." The corresponding rate of duty for articles of this subheading is 5.5% ad valorem.

Accordingly, the protest should be denied, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. 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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