CLA-2 CO:R:C:F 952666 EAB
Area Director
New York Seaport
6 World Trade Center
New York, New York 10048
Re: Request for reconsideration of NY 841641; carbides; not
agglomerated; mixtures; binders; EN 28.49; EN 38.23; EN
82.09; HQ 087611 affirmed; NY 841641 affirmed
Dear Ms. Maguire:
This is in response to Chief, National Import Specialist
Branch 1 Memorandum CLA-2-28:S:N:N1:235 (September 24, 1992).
FACTS:
NY 841641 (June 9, 1989) classified non-agglomerated
tungsten carbide containing either 25 or 80 percent cobalt and
used in the manufacture of tool tips under subheading
3823.30.0000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), dutiable at the applicable rate.
HQ 087611 (March 19, 1991) classified non-agglomerated metal
carbide powder not mixed with another substance under subheading
2849.90.3000, HTSUSA, and denied the protest giving rise to the
issue.
Conversations with importers of tungsten carbide have
developed the information that tungsten carbide is usually
shipped with a binder such as cobalt because tungsten carbide by
itself is too brittle for transportation.
Our attention having been invited to Explanatory Notes (ENs)
relevant to headings 2849 and 3823, this office has been
requested to determine what merchandise is properly classifiable
under the foregoing headings.
ISSUE:
What merchandise is classifiable under headings 2849 and
3823, HTSUSA?
LAW AND ANALYSIS:
Heading 2849 applies to carbides, whether or not chemically
defined.
Legal Note 1(a), Chapter 28, provides that except where the
context otherwise requires, the headings of that chapter apply
only to separate chemically defined compounds. The context of
heading 2849 describes carbides, whether or not chemically
defined.
Also classifiable under the headings of chapter 28 are
separate chemically defined compounds with an added stabilizer
necessary for their preservation or transport, Note 1(d), Chapter
28. General Explanatory Note (A) to the chapter gives emphatic
meaning to this provision: "Products added to certain chemicals
to keep them in their original physical state are * * * regarded
as stabilizers, provided that the quantity added in no case
exceeds that necessary to achieve the desired result and that the
addition does not alter the character of the basic product and
render it particularly suitable for specific use rather than for
general use." In further regard to the presence of cobalt, we
are mindful of that portion of EN 28.49(A)(7) which describes
tungsten carbides as being powders obtained from the metal powder
and carbon black and characterized by a high chemical stability
and high melting point, being very hard.
While conversations with importers indicate that tungsten
carbide is "usually" transported with a binder such as cobalt
because tungsten carbide is "too brittle," we are of the opinion
that cobalt, etc. added to a metal carbide, such as tungsten
carbide, is not a "stabilizer" that would save such an
importation for classification under heading 2849.
EN 28.49 further cautions in general that mechanical
mixtures are excluded from heading 2849, and specifically directs
that:
Mixtures of metal carbides, not agglomerated, but prepared
for the manufacture of plates, sticks, tips, etc., for tools
[are to be classified under heading 3823; whereas]
Mixtures of agglomerated metal carbides, in plates, sticks,
tips and the like for tools [are to be classified under
heading 8209.]
Heading 3823 essentially describes prepared binders,
chemical products and preparations of the chemical or allied
industries (including mixtures of natural products) not elsewhere
specified or included, and residual products of the chemical or
allied industries not elsewhere specified or included.
The explanatory notes for heading 2849 yield corresponding
language in EN 38.23(B)(2), which states that the preparations
and chemical products falling under heading 3823 include: "Non-
agglomerated metal carbides (tungsten carbide, molybdenum
carbide, etc.) mixed together or with metallic binders (such as
cobalt), for the manufacture of the tips or the like for tools of
heading 82.09."
In conclusion, it is our opinion that an unmixed metal
carbide is classifiable under heading 2849. If non-agglomerated
and mixed together or with metallic binders for the manufacture
of the tips or the like for tools of heading 8209, then the
merchandise is classifiable under heading 3823.
HOLDING:
Unmixed metal carbides are classifiable under heading 2843,
a provision for carbides, whether or not chemically defined.
Non-agglomerated metal carbides mixed together or with
metallic binders for the manufacture of the tips or the like for
tools of heading 8209 are classifiable under heading 3823, a
provision for prepared binders for foundry molds or cores;
chemical products and preparations of the chemical or allied
industries (including those consisting of mixtures of natural
products), not elsewhere specified or included; residual products
of the chemical or allied industries, not elsewhere specified or
included.
NY 841641 is affirmed; HQ 087611 is affirmed.
You are requested to forward to this office copies of any
previously issued rulings which may be contrary to this decision.
Sincerely,
John Durant, Director