CLA-2 RR:CTF:TCM 967512 JAS
Port Director, U.S. Customs and Border Protection
10 Causeway Street, Room 603 Boston, MA 02222
RE: Protest 0401-04-100242; Tantalum Powder
Dear Port Director:
This is our decision on Protest 0401-04-100242, filed by counsel on behalf of H.C. Starck, Inc., against your classification of tantalum powder under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
The goods were entered under a provision of heading 8103, HTSUS, as tantalum waste and scrap. They were reclassified under another provision of heading 8103, HTSUS, for unwrought tantalum, powder, and the entry liquidated on October 22, 2004, under this provision. This protest was timely filed on November 29, 2004.
The commercial invoice and packing list identify tantalum scrap, mostly in powder form with smaller quantities of tantalum rod and sheet. Imported in 1-liter bottles packaged in wooden crates, the merchandise is mixed, after importation, with other grades of scrap to achieve the desired chemical formulation, then melted and forged into ingots. These may then be either further forged into smaller diameters as round bar, rod or wire, or cut in half and forged flat for processing into plate, sheet and foil.
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The HTSUS provisions under consideration are as follows:
8103 Tantalum and articles thereof, including waste and scrap:
8103.20.00 Unwrought tantalum,…; powders
8103.30.00 Waste and scrap
Whether the merchandise, as imported, is tantalum waste and scrap.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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.
Section XV, Note 8, HTSUS, states that the following expressions have the meanings hereby assigned to them:
Waste and scrap
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.
Products of which 90 percent or more by weight passes through a sieve having a mesh aperture of 1 mm.
Counsel for the protestant maintains that the merchandise is classifiable as tantalum waste and scarp, in subheading 8103.30.00, HTSUS, and advances the following arguments in support of this classification: the merchandise is the leftovers and floor sweepings from a capacitor manufacturing process in which commercial grade tantalum powder is used. Thus, it cannot be utilized in its condition as imported and must undergo significant post-importation processing; the merchandise is said not to satisfy the Section XV, Note 8(b), HTSUS, definition for powders but does satisfy the Note 8(a) definition for waste and scarp. It is accepted commercial practice to sell virgin tantalum by the batch with certificates of analysis. No batch or lot numbers or
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certificates of analysis accompanied the merchandise under protest. The purchase price for the tantalum powder under protest for a two-year period prior to importation is for scrap-grade material and is approximately one-third the price for non-scrap tantalum powder. Assuming the merchandise is prima facie provided for both in subheading 8103.20.00 and in subheading 8103.30.00, under GRI 3(a), HTSUS, the latter subheading provides a more specific description for the merchandise than does the former. A declaration from protestant’s Manager of Purchasing attests to factors such as the pricing of the protested merchandise and its manner of its post-importation processing to establish the merchandise as waste and scrap. Finally, the merchandise under protest meets the guidelines for base metal waste and scrap found in CBP’s informed compliance publication (ICP) “What Every Member of the Trade Community Should Know About: Waste & Scrap as it Relates to Base Metals of Chapter 81.”
As to the liquidated provision in subheading 8103.30.00, HTSUS, the protestant in this case has the two-fold burden of proving (1) that the classification made by the concerned CBP official is erroneous, and (2) that its claimed classification is correct. Atlantic Aluminum & Metal Distributors, Inc. v. United States, 47 CCPA 88, C.A.D. 735 (1960), and related cases. CBP officials are presumed to have found every fact to exist that is necessary to sustain their classification, and the presumption is not rebutted until the importer/protestant submits substantial proof that the original classification is incorrect. Weyerhaeuser Company v. United States, 71 Cust. Ct. 81, C.D. 4479 (1973), and related cases.
Counsel’s assertion that the merchandise meets the Section XV, Note 8(a), HTSUS, definition for Waste and scrap is ultimately at issue and, therefore, is conclusory. CBP acknowledges that the absence of batch numbers and certificates of analysis for the merchandise under protest and its purchase price being consistent with nonscrap-grade tantalum may be evidence of nonconformity with accepted commercial practice regarding virgin tantalum. However, these facts alone do not conclusively establish the tariff status of the protested merchandise in its condition as imported. As it has not been shown that the merchandise is prima facie classifiable in subheading 8103.20.00, HTSUS, there is no basis for applying GRI 3(a), HTSUS. As to the declaration from protestant’s Manager of Purchasing, it is CBP’s position that affidavits and similar testimonials are normally of little probative value except to the extent that information they contain serves to corroborate evidence already in the file record or such information is otherwise independently verifiable. See HQ 961408, dated November 24, 1998, and related cases. In this case, statements by the declarant regarding tantalum scrap manufacturing processes, the commercial significance of “tantalum powder” and similar statements, relate to various aspects of tantalum production and usage, but are ultimately inconclusive in establishing the tariff status of the particular merchandise under protest. Finally, whether there is compliance with the guidelines set forth in CBP’s base metal waste & scrap ICP is of no legal significance
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here because of the caveat in this and similar ICPs that they are intended to provide guidance and information to the trade community on CBP’s interpretation of applicable laws and regulations and do not in any way replace or supersede those laws or regulations.
The protestant in this case has shown neither that the classification made by CBP is erroneous nor that its claimed classification is correct. There is no basis, therefore, to sustain the claim under subheading 8103.30.00, HTSUS.
Under the authority of GRI 1, the merchandise is provided for in heading 8103. It is classifiable in subheading 8103.20.0030, HTSUSA. The 2004 rate of duty is 2.5 percent ad valorem.
The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division