CLA-2 RR:TC:MM 959939 JAS
Port Director of Customs
200 East Bay Street
Charleston, SC 29401
RE: PRD 1601-96-100325; Electrolytic Manganese Mesh Powder, Manganese Refined Beyond Flakes, Other Manganese, Subheading
8111.00.60; Unwrought Manganese; Similar Manufactured Primary Form, Section XV, Additional U.S. Note 1; HQ 955399,
HQ 958935, HQ 959972
Dear Port Director:
This is our decision on Protest 1601-96-100325, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS), of electrolytic manganese powder, a
product of South Africa. The entry under protest was liquidated
on October 4, 1996, and this protest timely filed on October 17,
1996.
FACTS:
The merchandise in issue is invoiced as 40.830 metric tons
of electrolytic manganese, 99.7 percent pure, grade UP-40+200
mesh. Customs Laboratory report 4-96-21554-001, dated August 22,
1996, describes a silvery metal powder composed of manganese with
small amounts of impurities, and confirmed that the product was
unwrought.
The protestant maintains that manganese flakes qualify as an
unwrought form of manganese but that because the instant powder
is refined and undergoes several additional processes it becomes
a wrought product. For this reason he claims the merchandise is
classifiable as other manganese, in subheading 8111.00.60, HTSUS.
The protestant advances no substantive arguments to support the
proposed classification.
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The processing operations that produce the electrolytic
manganese under protest are not described. However, it is our
understanding that substantially similar merchandise 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. While manganese flakes are
often used in the production of alloy steel to increase
mechanical properties, they can also be washed and dried,
degassed to remove hydrogen gas, screened to remove fines, the
larger flakes tending to have more impurities, then milled to
powder form, sized, and stabilized. Electrolytic manganese
powder is used for alloying aluminum and steel, and for
manufacturing welding electrodes, manganese-based chemicals and
electronic components.
The provisions under consideration are as follows:
8111.00 Manganese and articles thereof, including
waste and scrap:
Other:
8111.00.45 Unwrought manganese
8111.00.60 Other
ISSUE:
Whether electrolytic manganese powder 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.
Section XV, Additional U.S. Note 1, HTSUS, defines the term
"unwrought" in part as referring to metal, whether or not
refined, in the form of ingots, blocks, lumps, billets, among
other named forms, and to include similar manufactured primary - 3 -
forms. In a recent judicial decision, 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
of International Trade 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 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 principles of Anval Nyby govern the classification of
electrolytic manganese powder. For this reason, we conclude that
the merchandise in issue is a manufactured primary form similar
to the exemplars in Section XV, Additional U.S. Note 1, HTSUS.
The merchandise is unwrought manganese for tariff purposes.
Nearly identical issues were the subject of HQ 955399, dated
April 28, 1994, and HQ 958935, dated October 4, 1996, the latter
decision affirmed by HQ 959972, dated June 5, 1997.
HOLDING:
Electrolytic manganese powder is provided for in heading
8111.00. It is classifiable in subheading 8111.00.45, HTSUS, as
unwrought manganese.
The protest should be 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. - 4 -
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, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division