CLA-2 CO:R:C:G 087611 ALS
Area Director of Customs
JFK Airport Area
JFK Airport
Building 178
Jamaica, New York 11430
RE: Request for Further Review of Protest 1001-0-002394, Dated
March 15, 1990, Concerning An Item Described As Hard Metal
Powder.
Dear Mr. Mattina:
This ruling is on a protest that was filed against your
decision in the liquidation of December 15, 1989.
FACTS:
The article under consideration is described, on the entry
being protested, as hard metal powder and, on the invoice related
to such entry, as hard metal powder and nonagglomerated metal
carbides.
In a memorandum in support of the protest and application
for further review prepared by counsel and submitted with the
protest, filed approximately 9 months after the entry of the
merchandise, the article is described in greater detail.
Counsel, in that memorandum states that the shipment in question
contained hard metal powders in two specific grades. Counsel
noted the composition of each grade and the percentage of the
contents of each grade. It also noted that the hard metal
powders are used in the manufacture of tools, tool tips, dies,
and wear-resistant parts for machine tools and similar
applications. Counsel stated that the term "Hard Metal Powder"
is a generic label used by the vendor and the importer (related - 2 -
companies) for a wide range of products composed in significant
part of metallic carbides which are generally used in the
manufacture of the aforementioned items.
Counsel, based on the information which it has provided,
suggests that the article is a mixture and should be classified
under subheading 3823.30.0000, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). In support of this conclusion
counsel references the explanatory notes to the Harmonized
System. Although not legally binding, the explanatory notes
represent the considered view of the classification experts from
the various member countries of the Customs Cooperation Council,
including the United States. Counsel mentions that explanatory
note 28.49 specifically indicates that only 3 products are
covered by Heading 2849, HTSUSA. Counsel further notes that
"mixtures of metal carbides..." and "mixtures of agglomerated
metal carbides..." are specifically excluded therefrom. In
addition counsel states that the explanatory notes provide that
mixtures of metal carbides are covered by Heading 3823, HTSUSA.
As previously noted, counsel presents the conclusion that the
article in question is a mixture and is, therefore, classifiable
under Heading 3823, HTSUSA.
ISSUE:
Is the article under consideration classifiable under
subheading 3823.30.0000, HTSUSA, as a nonagglomerated metal
carbide mixed together or with metallic binders?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes.
In reviewing the headings eligible for classification of the
article, we noted competing headings under which the article may
be classified. Heading 2849, HTSUSA, provides for "carbides,
whether or not chemically defined:." Subheading 2849.90.3000,
HTSUSA, specifically provides for carbides of tungsten. Heading
3823, HTSUSA, provides for "Prepared binders for foundry molds or
cores; chemical products and preparations of the chemical or
allied industries (including those consisting of mixtures of - 3 -
natural products), not elsewhere specified or included; residual
products of the chemical or allied industries, not elsewhere
specified or included:." Subheading 3823.30.0000, HTSUSA,
specifically provides for nonagglomerated metal carbides mixed
together or with metallic binders.
In considering the documents of record we noted several
problems. Although counsel proposes a classification of the
article under subheading 3823.30.0000, HTSUSA, and presents
reasoning in support thereof, we are unable to accept his
argument. The entry documents do not support the conclusion that
the article is a mixture. The only documentation relative
thereto is counsel's memorandum in support of the protest and
further review application. That memorandum, which postdates the
protested entry by 9 months, does not specify the basis of the
conclusions presented therein. It doesn't present laboratory
findings or other documents, contemporaneous with the entry,
which confirm the composition analysis presented by counsel.
Also, while counsel indicates that the shipment in question
actually consists of two grades of carbide mixture, the entry
documents only reference a single fungible article.
Further adding to the complexity of the matter is the fact
that the same products or similar products which are sold by the
overseas vendor to its related domestic U.S. consignee have been
alternately described as hard metal powder, nonagglomerated metal
carbides, RTP powder and metal carbides in the various entries
covering these products. Although the consignee has been
repeatedly advised that documentation submitted with entries for
the subject commodity does not support the conclusion that the
subject products are carbide mixtures, it has not proffered
analytical documentation in support of the proposed
classification. As to the merchandise covered by the subject
entry or other entries, while counsel has stated that the term
"hard metal powder" is used in the trade for powders composed in
significant part of metallic carbides which are used in the
manufacture of tools, etc., we are unable to confirm such use.
Assuming arguendo the accuracy of the claim, the term is
unacceptable for tariff purposes without the backup documentation
since it covers a wide range of products and does not provide
sufficient detail on any one of them to permit the proper tariff
classification of the products.
Based on the entry documentation of record, which does not
confirm that the entered article is a mixture of metal carbide,
we believe it is reasonable to conclude that such entered - 4 -
article is a carbon compound. Also, since none of the entry
documentation presents a basis for reaching a conclusion as to
the type of carbon compound, we believe that your conclusion that
the entered article is tungsten carbide is reasonable. In this
regard, we note that the unsupported composition analysis
submitted by counsel does indicate that tungsten carbide forms at
least a portion of the imported article. As indicated in
explanatory note 28.49, tungsten carbide is one of the best known
of the binary carbides and is used for the same purpose which
counsel has noted to be the purpose of the imported article.
HOLDING:
The entered article is properly classifiable under
subheading 2849.90.3000, HTSUSA, and is dutiable at a general
rate of 10.5 per cent ad valorem. The protest should be denied.
A copy of this decision should be attached to your Form 19,
Notice of Action, to be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division