> **HQ** 967512
>
> November 23, 2005
>
> **CLA-2 RR:CTF:TCM** 967512 JAS
>
> **CATEGORY:** Classification
>
> **TARIFF NO.:** 8103.20.00
>
> 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.
>
> **FACTS**:

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.

\- 2 -

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

**ISSUE**:

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:

(a) [Waste and scrap]{.underline}

> 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.

(b) [Powders]{.underline}

> 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]{.underline} but does satisfy the Note 8(a)
definition for [waste and scarp]{.underline}. It is accepted commercial
practice to sell virgin tantalum by the batch with certificates of
analysis. No batch or lot numbers or

\- 3 -

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]{.underline} 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]{.underline} 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

\- 4 -

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.

**HOLDING**:

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.

> Sincerely,
>
> Myles B. Harmon, Director
>
> Commercial and Trade Facilitation Division