CLA-2 CO:R:C:M 955629 KCC
Carol A. Mitchell, Esq.
Dewey Ballantine
1775 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-4605
RE: Magnesium T-bar; 8104.11.00; Additional U.S. Note 2, Section
XV; unwrought; continuous cast; trimming; cutting; HRL 089934;
Countervailing Duty Case Number C-122-815
Dear Ms. Mitchell:
This is in response to your letter dated December 2, 1993, to
Customs in New York, on behalf of Norsk Hydro Canada Inc.,
regarding the tariff classification of magnesium T-bars under the
Harmonized Tariff Schedule of the United States (HTSUS). Your
letter was referred to this office for a response. Arguments you
made at a meeting on March 29, 1994, were considered for this
decision.
FACTS:
The product under consideration is a magnesium T-bar (T-bar)
with a chemical composition of not less than 99.8% by weight
magnesium content. The T-bar is used for remelting by the aluminum
industry. The T-bar is produced by a direct chill vertical
continuous cast process. Molten magnesium is poured into a direct
chill continuous caster mold made of aluminum which is then moved
through a water cooled mold. After a solid skin is formed on the
magnesium within the mold, the bottom of the mold plate, i.e.,
pedestal, is lowered removing part of the partially solidified
magnesium T-bar out of the mold. Thereafter, additional molten
magnesium is poured into the empty portion of the mold.
Once the partially solidified T-bar is removed from the mold,
water is sprayed to enhance the cooling and solidification process.
Water collects at the bottom of the pit into which the partially
solidified T-bar is lowered. The pedestal is continuously lowered
until a T-bar approximately 21 feet long has been formed. At the
end of the process, approximately two thirds of the T-bar is
submerged in the water pit.
Thereafter, the T-bar is removed from the water and
transferred to a table for cutting with a mechanized saw. A butt
at the top end is removed and scrapped. The remainder of the T-
bar is cut into shorter pieces per customer order, but not smaller
than 15 inches.
You contend that pursuant to Additional U.S. Note 2, Section
XV, HTSUS, the T-bar is not an unwrought product and, therefore,
is properly classified under subheading 8104.90.00, HTSUS, as other
magnesium.
ISSUE:
Is the magnesium T-bar classified as unwrought magnesium under
subheading 8104.11.00, HTSUS, or as other magnesium under
subheading 8104.90.00, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed
by the General Rules of Interpretation (GRI's). GRI 1, HTSUS,
states, in part, that "for legal purposes, classification shall be
determined according to terms of the headings and any relative
section or chapter notes...." The competing subheadings are as
follows:
8104 Magnesium and articles thereof, including waste and
scrap...
8104.11.00 Unwrought magnesium...Containing at least 99.8
percent by weight of magnesium.
8104.90.00 Other.
Heading 8104 falls within Section XV, HTSUS, making the
Section XV, HTSUS, notes applicable to this classification.
Additional U.S. Note 2, Section XV, HTSUS, states that:
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 (emphasis in original).
The T-bar at issue is not specifically enumerated in
Additional U.S. Note 2, Section XV, HTSUS. However, the term
"unwrought" as defined refers to "similar manufactured primary
forms", but does not cover "...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."
First, we note that in the T-bar's 21 foot length, there is
no question that it is an unwrought product. The 21 foot T-bar
which is continuous cast is a "similar manufactured primary form"
as defined in Additional U.S. Note 2, Section XV, HTSUS, since it
is similar to the listed exemplars in the note. It is subject to
an acceptable trimming operation, i.e., the removal of the butt
end, pursuant to the definition of trimming, supra. The removal
of the butt end is similar to the removal of gates, risers and
fins.
Additionally, we are of the opinion that the T-bar at issue
is also "unwrought" because it is a "similar manufactured primary
form" as defined in Additional U.S. Note 2, Section XV, HTSUS. We
do not believe that the continuous cast T-bar at issue is
classified under subheading 8104.90.00, HTSUS, as other magnesium
merely becuse it is cut/mechanically sawed into smaller lengths
pursuant to a customer's order.
Continuous casting is defined as:
A casting technique in which an ingot, billet, tube or other
shape is continuously solidified while it is being poured, so
that its length is not determined by mold dimensions.
Metals Handbook, 8th Edition, pg. 10. This definition states that
continuous casting is a casting technique, but it differs from
standard casting in that its length is not determined by mold
dimensions. The length of a continuous cast piece is determined
by manufacturers specifications via a cutting operation. In a
continuous casting operation there is an implied cutting operation
which is not necessary in a standard casting operation. The
continuous cast piece must be cut to shorter lengths for a salable,
more manageable piece similar to the standard molded casting piece.
We believe that the cutting operation in this case reduces an
unwrought T-bar into a shorter, more manageable version of the same
unwrought T-bar. Therefore, we are of the opinion that the T-bar
at issue is properly classified as unwrought magnesium under
subheading 8104.11.00, HTSUS.
We do note that the cutting/sawing operation at issue is not
similar to metal trimming. Trimming in the metals industry is
described as follows:
(1) In drawing, shearing the irregular edge of the drawn part.
(2) In forging or die casting, removing any parting-line flash
and gates from the part by shearing. (3) In casting, the
removal of gates, risers and fins.
ASM Metals Reference Book, Second Edition (1983) (pg. 76).
Whereas, sawing is described as:
Cutting a workpiece with a band, blade or circular disk having
teeth.
ASM Metals Reference Book, Second Edition (1983) (pg. 62).
However, as stated previously, we believe that the
sawing/cutting operation at issue is cutting unwrought T-bar to
shorter lengths, thereby producing a shorter version of the same
unwrought T-bar. Additionally, Customs will not take a position
which could significantly affect the metals industry, i.e. legally
finding that the T-bar at issue is not an unwrought product
classifiable under subheading 8104.11.00, HTSUS, when it is
actually a "manufactured primary form" similar to the other
exemplars in Additional U.S. Note 2, Section XV, HTSUS. This
office will not misclassify an unwrought product as other magnesium
under subheading 8104.90.00, HTSUS, merely because it has been cut
to a shorter length. In effect, the T-bar at issue is simply a
shorter version of the unwrought 21 foot T-bar.
You rely upon Headquarters Ruling Letter (HRL) 089934 dated
October 20, 1992, which classified gold pellets as
"semimanufactured" products under subheading 7108.13.50, HTSUS.
The gold pellets were manufactured by a continuous casting
operation and then were cut to length pursuant to IBM's blueprint
specifications. The principal issue in HRL 089934 was whether the
continuous cast pellets were "unwrought" or "semimanufactured"
products pursuant to the definitions of these terms in Additional
U.S. Notes for Section XVI, HTSUS. The T-bar at issue is a base
metal classifiable in Section XV, HTSUS, where there is no concept
comparable to "semimanufactured." The cutting in the gold pellet
case is not comparable to the cutting of the T-bar because it was
part of a process to produce a "semimanufactured" product.
Moreover, although Additional U.S. Note 2, Section XV, HTSUS,
which defines "unwrought" in this case and Additional U.S. Note
1(a), Section XVI, HTSUS, which defines "unwrought" in the gold
pellet case are similar, they are not comparable for tariff
classification purposes. The classification of gold is found in
the precious metals section of HTSUS, i.e., Section XIV, whereas
the T-Bar classification is found in the base metals section, i.e.,
Section XV. Remarks made in applying the Additional U.S. Note
1(a), Section XVI, HTSUS, need not control the classification of
goods in the base metals section.
We note that the T-bar at issue is subject to Countervailing
Duty (CVD) Case Number C-122-815. The CVD No. C-122-815 order
states:
The products covered by this investigation are pure and alloy
magnesium from Canada. Pure unwrought magnesium contains at
least 99.8 percent magnesium by weight and is sold in various
slab and ingot forms and sizes....Pure and alloy magnesium are
currently provided for in subheadings 8104.11.0000 and
8104.19.0000...Although the HTS subheadings are provided for
convenience and customs purposes, our written description of
the scope of this proceeding is dispositive.
HOLDING:
The magnesium T-Bar is classified under subheading 8104.11.00,
HTSUS, as unwrought magnesium, which is dutiable at the Column 1
rate of 8% ad valorem.
Sincerely,
John Durant, Director