CLA-2:CO:R:C:M 951642 JAS
District Director of Customs
1 East Bay Street
Savannah, Georgia 31401
RE: Cermet Waste and Scrap; Tungsten Carbide Waste and Scrap;
Broken Drill Bits, Mill Cutters, Inserts; Headings
8101.91.10, 8113.00.00, HTSUS; PRD 1703-91-100090
Dear Sir:
This is our decision on Application for Further Review of Protest No. 1703-91-100090, dated August 19, 1991, filed on behalf of the San Miguel Corp. The merchandise is broken ends and pieces of cutting tools from Japan.
FACTS:
The articles in issue are various used, worn and broken ends and other pieces of drills, millers and other cutting tools, imported in drums. The merchandise is invoiced as tungsten scrap and is certified by the foreign seller as containing between 73-89 percent tungsten and between 6-21 percent cobalt, both by weight, with carbon making up the remaining portion. The importer/protestant describes the merchandise as tungsten carbide scrap and notes that it contains over 50 percent, by weight, of tungsten.
The merchandise was entered under subheading 8101.91.10, Harmonized Tariff Schedule of the United States (HTSUS), a provision for other tungsten waste and scrap.
You note that the merchandise cannot be reworked or retrofitted and is being imported to reclaim the tungsten in carbide form using a zinc immersion process. You note that the presence of tungsten carbide precludes a heading 8101 classification and renders the merchandise a cermet waste and - 2 -
scrap. You therefore liquidated the entry in question under heading 8113.00.00, HTSUS, a provision for cermets and articles thereof, including waste and scrap.
The tungsten carbide used in certain cutting tools is made by sintering a mixture of tungsten carbide powder and powdered cobalt. The resulting mixture maximizes the wear resistance and strength necessary to resist the shock involved in cutting tool and rock drilling applications.
ISSUE:
Whether the broken end pieces are cermets for tariff purposes.
LAW AND ANALYSIS:
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 Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, 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 notes should always be consulted. See T.D. 89-80.
Section XV, Note 6(a), HTSUS, defines the term 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."
Both of the headings under consideration provide for waste and scrap. However, relevant ENs at pp. 1089-90 state that chapter 81 is limited to base metals such as tungsten (wolfram) of heading 8101, their alloys and articles thereof, and that the chapter also covers cermets (heading 8113). The notes state further that the tungsten of heading 8101 is a dense, steel-gray metal, with a high melting point. It is brittle, hard and has a high resistance to corrosion. The most important use of tungsten - 3 -
is the preparation of special steels. It is also used in the preparation of tungsten carbide. The merchandise in issue is a
carbide which is a compound not a base metal. It is not provided for in heading 8101.
Protestant comments that in the industry cermets have a tungsten content of no more than 10 percent by weight. He then cites item 629.26, Tariff Schedules of the United States (TSUS), a provision covering tungsten waste and scrap containing by weight over 50 percent of tungsten, and notes the tungsten content of the instant merchandise always exceeds 50 percent by weight. He concludes that the merchandise cannot qualify as a cermet and is therefore unwrought. Any industry standard regarding cermets is undocumented in the record. Moreover, the reference to a TSUS provision in this context is unclear. Item 629.26 is in Schedule 6, Part 2, Subpart J, which encompasses tungsten metal, among other metals, its alloys, and tungsten metal waste and scrap. Under the TSUS this merchandise would not be classifiable in item 629.26 because, as previously stated, it is a compound and not a metal.
Protestant's reference to alloys of the base metals of chapter 81 is misplaced here because the term "alloys" includes sintered mixtures of metal powders but excludes cermets. See Section XV, Note 3(c), HTSUS. ENs at p. 1099 indicate that cermets of heading 8113 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 cobalt, among others. The notes state further that among the most important cermets are those obtained by sintering tungsten carbide with cobalt. The merchandise in issue conforms precisely to this description.
HOLDING:
Pursuant to GRI 1, the instant merchandise is classifiable in heading 8113.00.00, HTSUS, a provision for cermets and articles thereof, including waste and scrap.
The protest should be denied. A copy of this decision should be attached to the Customs Form 19, and mailed to protestant, through its representative, as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division