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