CLA-2:CO:R:C:M 955399 JAS
District Director of Customs
1 E. Bay St., Rm. 104
Savannah, GA 31401
RE: PRD 1703-93-100148; Electrolytic Manganese Powder;
Briquetting Manganese; Unwrought Manganese; Other Manganese,
Subheading 8111.00.60; Similar Primary Manufactured Form;
Section XV, Note 5, and 6(b), Additional U.S. Note 2;
NY 806462, NY 846012
Dear Sir:
This is our decision on Protest No. 1703-93-100148, filed
against your classification of certain manganese powder from
Switzerland. The entry in question was liquidated on July 23,
1993, and this protest timely filed on October 21, 1993.
FACTS:
The merchandise in issue is variously described as
manganese/iron power, electrolytic manganese, briquetting
manganese and manganese briquetting powder. It is a
proportionately blended mixture of manganese and iron powder of
which manganese predominates by weight. This powder 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, then crushed and sized.
The merchandise is a powder which, after importation, is
agglomerated under pressure into briquettes and used as an
additive in the production of alloy steel to increase mechanical
properties.
The merchandise was entered under the provision for other
manganese and articles thereof, in subheading 8111.00.60,
Harmonized Tariff Schedule of the United States (HTSUS). The
concerned import specialist determined that the product was
unwrought for tariff purposes and liquidated the entry under
subheading 8111.00.45, HTSUS, as unwrought manganese. - 2 -
Counsel for protestant makes the following arguments in
support of the entered classification: a ruling to protestant
under the TSUS classified the merchandise as an article of base
metal, the parallel provision under the HTSUS being subheading
8111.00.60; manganese powder is not enumerated as an unwrought
form of base metal in the legal note defining the term; in the
statutory scheme of Chapter 81, powders are an independent
category of goods mutually exclusive from and not a subcategory
of unwrought metals; and, various HQ rulings support the
proposition that powders are not an unwrought form of base
metals.
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...5.5 percent
ISSUE:
Whether manganese/iron powder is unwrought for tariff
purposes.
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.
The merchandise is provided for in heading 8111 because it
is a mixture of two or more base metals with manganese
predominating by weight. Section XV, Note 5, HTSUS. Moreover,
it is a powder for tariff purposes. Section XV, Note 6(b),
HTSUS. Finally, it is an unwrought form of metal. Section XV,
Additional U.S. Note 2, HTSUS.
GRI 3(a) states that where goods are, prima facie,
classifiable under two or more headings, the heading which
provides the most specific description shall be preferred. Under
the authority of GRI 3(a), applied at the subheading level by GRI
6, the provision for unwrought manganese, if it applies, would be
more specific when compared to a provision for other manganese. - 3 -
Counsel correctly notes that powders are not among the
listed exemplars in the legal note defining unwrought forms; the
issue, however, is whether powders are manufactured primary forms
"similar" to the exemplars listed in the note. Counsel argues
that the enumerated unwrought forms all have a common
characteristic not shared by powders, to which powders are not
similar. Unlike the enumerated unwrought forms which are
suitable for direct addition to steel heats as additives,
manganese powders cannot be added directly to steel heats because
their fineness results in their being unevenly distributed in the
melt or exhausted as dust. Powders must first be agglomerated
into briquettes; it is the briquettes that are added to the melt.
Congress' omission of powders from the cited U.S. note may
render the note ambiguous. In such cases, the obligation is to
construe the note as to eliminate anomalous or inconsistent
results as not reflective of legislative intent. Counsel's
proposed classification would mean that electrolytic manganese
powder is not an unwrought product but becomes unwrought after
further processing into briquettes. This is such an anomalous
result. A metal powder which has been advanced beyond the
primary stage cannot be returned to the primary stage by
processing it to a more advanced form. The more logical
interpretation is that the briquetting of electrolytic manganese
powder advances one primary form of base metal to another primary
form.
NY 806462, dated July 20, 1983, issued to counsel for
protestant, classified electrolytic manganese powder under item
658.00, Tariff Schedules of the United States (TSUS). Such
rulings would ordinarily be regarded as instructive in a case-
by-case basis in the classification of identical merchandise
under the HTSUS, where the language previously interpreted
remains unchanged and no dissimilar interpretation is required by
the text of the HTSUS. NY 806462 is not instructive here because
it is believed to be incorrect. Mixtures were classified under
the TSUS as they are under the HTSUS. As such, under the TSUS,
this merchandise should have been classified in item 632.30, as
unwrought manganese. NY 018933, dated July 24, 1972, reflects
the correct classification of electrolytic manganese under the
TSUS.
The HTSUS rulings counsel cites, HQ 088517, HQ 950031 and
HQ 952242, all involve base metals other than manganese in which
provisions for powders were in competition with provisions for
unwrought base metal. These rulings are inapplicable here
because there is no provision for manganese powder in the HTSUS.
NY 846012, dated October 19, 1989, reflects the correct
classification of electrolytic manganese under subheading
8111.00.45, HTSUS. - 4 -
HOLDING:
Under the authority of GRI 1, electrolytic manganese powder
is provided for in heading 8111. It is classifiable in
subheading 8111.00.45, HTSUS, as unwrought manganese.
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, you should 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 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
take steps to make the decision available to Customs personnel
via the Customs Rulings Module in ACS and to the public via the
Diskette Subscription Service, Lexis, the Freedom of Information
Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division