CLA-2 RR:TC:MM 959972 JAS
John B. Rehm, Esq.
Dorsey & Whitney
1330 Connecticut Avenue, N.W., Suite 200
Washington, D.C. 20036
RE: HQ 958935 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, Apple Computer, Inc. v. United States, Anval Nyby Powder AB v. United States
Dear Mr. Rehm:
In a letter, dated November 14, 1996, on behalf of Manganese
Metal Company (Proprietary) Limited, you ask that we reconsider a
ruling to you, HQ 958935, dated October 4, 1996, classifying
electrolytic manganese powder (EMP) as unwrought manganese, in
subheading 8111.00.45, Harmonized Tariff Schedule of the United
States. You restate the contention that EMP is classifiable as
other manganese, in subheading 8111.00.60, HTSUS.
FACTS:
The decision in HQ 958935 represented an affirmation of DD
818858, dated February 15, 1996, in which the Port Director of
Customs, Champlain, NY, confirmed the subheading 8111.00.45,
HTSUS, classification. As described, EMP is 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 the production of
alloy steel to increase mechanical properties. In this case,
however, the flakes are further processed into EMP by being
washed and dried, degassed to remove hydrogen gas, screened to - 2 -
remove fines, the larger flakes tending to have more impurities,
then milled to powder form, sized, and stabilized. EMP is said
to be used for alloy additions to specialty steel and aluminum,
in making welding electrodes, and for manufacturing manganese-based chemicals and electronic components.
You maintain that the decision in HQ 958935 is incorrect for
two reasons: (1) it disregards arguments you made that the order
and structure of HTS Section XV repeatedly recognizes by express
language that powders are not a form of unwrought metal but stand
as separate and distinct products, plus the fact that the
drafters of the HTSUS did not see fit to include "powder" in the
Section XV, Additional U.S. Note 1 definition of "unwrought" can
only mean that powders cannot be considered unwrought for tariff
purposes, and, (2) the decision misinterprets a judicial decision
on substantially similar merchandise that you cite in support of
the subheading 8111.00.60 classification.
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.
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.
- 3 -
Regarding your first contention, we gave full and careful
consideration to your claim that Congress did not consider
powders to be unwrought for purposes of Section XV. However, we
decided that no definitive conclusions could be drawn from the
order and structure of Section XV because the tariff treatment of
powders in Section XV is not uniform. For this reason, and also
because we believe our discussion concerning your second
contention is key to resolving this matter, we did not
specifically address your claim as to Congressional intent. See
Apple Computer, Inc. v. United States, Slip Op. 90-111 (Ct. Int'l
Trade, decided October 19, 1990). The provisions involved here
are in heading 8111.00. Viewing those provisions as drafted, it
is our opinion that there is no legal reason why EMP cannot be
considered unwrought if it is a manufactured primary form similar
to the exemplars listed in the Section XV, Additional U.S. Note 1
definition of the term "unwrought."
Your second contention is that we have misinterpreted a
recent Court of International Trade decision, Anval Nyby Powder
AB v. United States, Slip Op. 96-80 (Ct. Int'l Trade, decided May
21, 1996), cited in support of your proposed classification. 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 used in Section XV,
Additional U.S. Note 1 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 the cited legal note, the Court noted that the
cobalt powder used in both applications must first be melted to
form a solid mass, either in the shape of the weld (in a plasma
arc welding application) or the shape of a valve or other article
to be coated (in a thermal spraying application). In neither
case was the powder itself a final good. It was later processed
so as to become a part of or subsumed into a finished good, and
that apart from that finished good, the powder had no apparent
utility.
The contention on pp. 3 and 4 of your November 14, 1996,
submission is that EMP does not require further processing or a
secondary operation in order to be used in an actual application.
In that sense, you conclude that EMP is itself a final end
product. We do not agree with this conclusion. The record
reflects that in each of its stated intended applications the EMP
must undergo some further processing which changes its form or
shape before becoming part of a finished good. For example, as
an additive in making specialty steel and aluminum, and in the - 4 -
manufacture of manganese-based chemicals and electronic
components EMP changes from powder to an intermediate molten
state. You do not outline the process of making welding
electrodes, but in this application the EMP necessarily changes
from a powder to some other intermediate form. In none of these
applications does the resulting product possess the dimensional
features of the EMP. Anval Nyby, at p. 46.
For these reasons, we remain of the opinion that the EMP in
issue is a manufactured primary form similar to the exemplars
listed in Section XV, Additional U.S. Note 1, HTSUS. The EMP is
unwrought manganese for tariff purposes.
HOLDING:
Electrolytic Manganese Powder (EMP) is provided for in
heading 8111.00. It is classifiable in subheading 8111.00.45,
HTSUS, as unwrought manganese. HQ 958935, dated October 4, 1996,
is affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division