CLA-2 OT:RR:CTF:TCM H015795 ARM
Port Director
Port of Newark
U.S. Customs and Border Protection
1100 Raymond Boulevard Newark, NJ 07102
ATTN: Jennifer Tagliaferro, Protest and Control
Re: Application for Further Review of Protest No: 4601-07-101260; Manganese Mextral Tablets
Dear Port Director:
The following is our decision regarding Protest No. 4601-07-101260, timely filed on May 10, 2007, regarding the classification of Manganese Mextral Tablets from Brazil under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protest involves five entries made from April 20, 2006, through July 28, 2006, under subheading 8111.00.60, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Other.” CBP liquidated all the entries on November 17, 2006, in subheading 8111.00.49, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Unwrought manganese: Other.” According to the submitted information, at the time of entry the actual freight terms were not known by the import clerk. Protestant now submits evidence that the “terms of sale” are “DDP Oswego, New York,” and that, as a result, the transaction value of the merchandise needs to be corrected and the entries reliquidated.
The entries protested consist of Manganese Mextral Tablets. The merchandise is composed of 85% manganese and 15% aluminum and is used as a hardener for aluminum. According to protestant, the manufacturing process is as follows: raw manganese flakes are ground to a powder; the powder is sorted into sizes through a sieving process; the manganese powder is then weighed and mixed and homogenized with aluminum powder; the mixed powder is compressed into either tablet form or briquette form with the use of a fluxing agent during a sintering process; the resulting tablets or briquettes are packed into rolls.
ISSUES:
Whether the merchandise is “unwrought”.
Whether reliquidation is warranted for a clerical error under 19 CFR § 173.4(b).
Whether the merchandise is eligible for duty preference under the Genralized System of Preferences (GSP).
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429,
§ 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4601-07-101260 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve specific factual and legal questions that were not considered at the time of the original determination.
Additionally, protestant files in accordance with the provisions of 19 C.F.R.
§ 173.4(b) regarding a clerical error or mistake of fact. Importer claims that “At the time of entry the actual freight terms were not known by the import clerk. As the terms of sale in the transaction was DDP – Oswego, NY the entry summaries reflect incorrect amounts in Col. 33 A. The amount is not equal to the transaction value of the imported merchandise”.
Classification
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
The HTSUS headings under consideration are the following:
8111 Manganese and articles thereof, including waste and scrap:
Other [than waste and scrap]:
Unwrought manganese:
8111.00.49 Other [than flake containing at least 99.5% by weight manganese] . . . . . . . . . . . . . . . . . . . . . . . . .
8111.00.60 Other . . . . . . . . . . . . . . . . . . . . . . . . .
The Additional U.S. Note to Section XV, HTSUS, states, in pertinent part, the following:
1. For the purposes of this section, the term "unwrought" refers to metal, whether or not refined, in the form of ingots, blocks, lumps, billets, cakes, slabs, pigs, cathodes, anodes, briquettes, cubes, sticks, grains, sponge, pellets, flattened pellets, rounds, rondelles, shot and similar manufactured primary forms, but does not cover rolled, forged, drawn or extruded products, tubular products or cast or sintered forms which have been machined or processed otherwise than by simple trimming, scalping or descaling.
There is no dispute between headings presented at GRI 1 because the entries concern manganese, which is provided for in heading 8111, HTSUS. Consequently, we will only discuss the eight-digit subheading dispute at GRI 6.
In listing the “Pressing and Briquetting Process” in its description of manufacture, protestant includes the parenthetical “sintering”. Protestant states that the articles are “wrought articles of manganese and they have undergone very specific processes that meet or exceed the conditions of sintered manganese articles.” [Supplemental submission to protest, no page number]. The term “sintering” is defined as “the agglomeration of metal or earthy powders at temperatures below the melting point.” Lewis, Richard J., Sr., Hawley’s Condensed Chemical Dictionary, 15th Ed., 1129, (John Wiley & Sons, Inc. 2007). Additional U.S. Note to Section XV, HTSUS, provides that sintered products that have not been machined or processed, other than by simple trimming, scalping or descaling, are covered by the term “unwrought.” There is no evidence that the tablets or briquettes are further worked after being compressed into these forms. The manufacturing information given states simply that they are packaged at that point. Additionally, there is no evidence that the tablets or briquettes have been subjected to other processes, such as rolling, forging, drawing, extrusion or casting that would exclude them from the definition of “unwrought” in Additional U.S. Note 1 to section XV. Hence, the instant merchandise is classified in subheading 8111.00.49, HTSUS, which is the provision for: “Manganese and articles thereof, including waste and scrap: Other: Unwrought manganese: Other.”
Our position here is consistent with New York Ruling Letter (NY) M85536, dated August 21, 2006, and in NY K82081, dated December 31, 2003, in which CBP classified similar manganese tablets in subheading 8111.00.49, HTSUS. These tablets had also been pressed into form without further manufacture such as forging, rolling or extrusion.
Duty Preference
The protestant makes a claim under the Generalized System of Preferences based upon its assertion that the goods are the product or manufacture of Brazil. Title V of the Trade Act of 1974, as amended (19 U.S.C. §§ 2461-65), authorizes the President to establish a Generalized System of Preferences (“GSP”) to provide duty-free treatment for eligible articles imported directly from beneficiary developing countries (“BDCs”). Articles produced in a BDC may qualify for duty-free treatment under the GSP if the goods are imported directly into the customs territory of the United States from the BDC and the sum of the cost or value of materials produced in the BDC, or any two or more countries that are members of the same association of countries and are treated as one country under 19 U.S.C. § 2467(2), plus the direct costs of the processing operations performed in the BDC or member countries, is equivalent to at least 35 percent of the appraised value of the article at the time of entry into the United States. See 19 U.S.C. § 2463(a)(2) and (3), and the implementing Customs and Border Protection (“CBP”) Regulations at 19 CFR § 10.171-178.
As indicated above, we have determined that, at the time of entry in 2006, the goods were classified under subheading 8111.00.49, HTSUS. That provision contained an “A+” in the Special subcolumn. General Note 4(b)(ii) (2006) provided that “[t]he symbol ‘A+’ indicates that all least-developed beneficiary countries are eligible for preferential treatment with respect to all articles provided for in the designated provisions.” [Emphasis supplied.] Brazil was not a least-developed beneficiary country as provided in General Note 4(b)(i), HTSUS (2006). Therefore, the subject goods are not eligible for treatment under GSP.
Clerical error, inadvertence or mistake of fact
The protestant also requests that the subject entries be reliquidated because at the time of entry the actual freight costs were not known. It states that the terms of sale were “DDP – Oswego.” The protestant has provided a spreadsheet on which it deducts the costs of international ocean freight and brokerage fees from the original invoice value. It has submitted separate invoices on which the international ocean freight is invoiced, but it has not submitted such documentation for the brokerage fees. Based on the documentation provided, we find that the amounts stated for international freight are not included in transaction value. This result is consistent with HQ 546226, dated March 25, 1996. The amounts stated for brokerage fees may not be deducted, however, inasmuch as the documentation submitted is insufficient to support a finding that the amounts claimed are excluded from transaction value.
HOLDING:
By application of GRI 1 through the provisions of GRI 6, HTSUS, the manganese mextral tablets at issue are classified in subheading 8111.00.49, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Unwrought manganese: Other.”
Since classification of the merchandise as indicated above is the same as liquidated, you are instructed to DENY the protest. Furthermore, the amounts stated for brokerage fees may not be deducted, inasmuch as the documentation submitted is insufficient to support a finding that the amounts claimed are excluded from transaction value.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.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