CLA-2 CO:R:C:M 953080 LTO
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.
- 3 -
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