CLA-2 RR:TC:MM 958935 JAS
John B. Rehm, Esq.
Dorsey & Whitney
1330 Connecticut Avenue, N.W., Suite 200
Washington, D.C. 20036
RE: DD 818859 Affirmed; Electrolytic Manganese Powder; Unwrought
Manganese, Unwrought Metal, Other Manganese, Subheading 8111.00.60, Similar Manufactured Primary Form, Section XV, Additional U.S. Note 1; HQ 955399, Anval Nyby Powder AB v. United States, Slip Op. 96-80
Dear Mr. Rehm:
In a letter, dated February 26, 1996, on behalf of Manganese
Metal (Proprietary) Company Limited, you ask that we reconsider a
ruling issued by Champlain, NY, Customs, on electrolytic
manganese powder. Additional arguments were made at a meeting in
our office on July 29, 1996, and confirmed by letter, dated
September 18, 1996.
FACTS:
In DD 818858, dated February 15, 1996, the Port Director of
Customs, Champlain, NY, held that certain electrolytic manganese
powder (EMP) was classifiable in subheading 8111.00.45,
Harmonized Tariff Schedule of the United States (HTSUS), as other
unwrought manganese. The merchandise was described as being at
least 99.5 percent by weight manganese metal, 100 percent of
which will pass through a sieve having a mesh aperture of 1
millimeter.
This material is produced from manganese sulfate in solution
which is electrically charged, causing the manganese to form on
one of the charged electrodes. The manganese is allowed to dry,
after which it is knocked off the electrode in the form of
flakes. You state that many companies use manganese flakes in - 2 -
the production of alloy steel to increase mechanical properties.
In this case, however, the flakes are washed and dried, degassed
to remove hydrogen gas, screened to remove fines or larger flakes
tending to have more impurities, then milled to powder form,
sized, then stabilized for specialized welding applications by
processing with a chemical oxidizing agent. In addition to this
use, EMP is said to be used for alloying aluminum, and for
manufacturing manganese-based chemicals and electronic
components.
In arguing that EMP is classifiable as other manganese, you
note that powders are not enumerated within the term "unwrought,"
as defined in Section XV, Additional U.S. Note 1, HTSUS, and
that, as a matter of law, they cannot be regarded as unwrought
for tariff purposes; powders are an independent category of goods
mutually exclusive from and not a subcategory of unwrought
metals. You note that under the HTSUS three new products,
flattened pellets, rounds and rondelles, were added to the
definition of the term "unwrought." You conclude that failure to
include powder is an indication that Congress never intended that
it be considered unwrought for tariff purposes. Moreover, you
contend that, as a matter of fact, it is the magnesium flakes
that are the primary manufactured form of magnesium, and that EMP
is well advanced beyond a manufactured primary form of the type
contemplated by that Note. In fact, EMP is increasingly used as
a final, as opposed to an intermediary, product. Finally, you
note that none of our major trading partners classify base metal
powders in unwrought provisions.
The provisions under consideration are as follows:
8111.00 Manganese and articles thereof, including
waste and scrap:
Other:
8111.00.45 Unwrought manganese...14 percent
8111.00.60 Other...4.8 percent
ISSUE:
Whether EMP is a manufactured primary form similar to the
metals listed in Section XV, Additional U.S. Note 1.
- 3 -
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
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.
As previously stated, we agree that the merchandise is a
powder for tariff purposes, and that it is provided for in
heading 8111.00 because, in accordance with Section XV, Note 5,
HTSUS, it is a mixture of two or more base metals with manganese
predominating by weight.
You interpret a recent Court of International Trade decision
to support your proposed classification. We do not agree. In
Anval Nyby Powder AB, v. United States, Slip Op. 96-80 (Ct. Int'l
Trade, decided May 21, 1996), in the context of cobalt alloy
powders used in plasma arc welding and thermal spraying or
coating applications, the Court concluded that the phrase
"manufactured primary forms" refers to forms that have undergone
some processing but must undergo further processing before they
appear in an eventual final product. In concluding that the
cobalt alloy powders were manufactured primary forms similar to
the ones enumerated in Additional U.S. Note 1, the Court noted
that the cobalt powder was not itself a final good. It was later
processed as to become a part of a finished good, and that apart
from that finished good, it had no apparent utility. The record
reflects that the EMP in issue is used to manufacture aluminum
products, welding rods, manganese chemicals like acetate, and
electronic components like ferrites. It is reasonable to
conclude that these are final products of the type envisioned by
the Anval Nyby court and that apart from these products EMP has
no apparent utility.
We conclude that the EMP in issue is a manufactured primary
form similar to the exemplars in Section XV, Additional U.S. Note
1, HTSUS. The EMP is unwrought manganese for tariff purposes.
Substantially similar issues were the subject of HQ 955399, dated
April 28, 1994.
- 4 -
HOLDING:
Electrolytic Manganese Powder (EMP) is provided for in
heading 8111.00. It is classifiable in subheading 8111.00.45,
HTSUS, as unwrought manganese. DD 818859, dated February 15,
1996, is affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division