CLA-2 RR:CR:GC 965780 AM
Port Director
U.S. Customs Service
301 East Ocean Blvd.
Long Beach, CA 90802
Re: Protest 2704-01-102065; QN Basic Nickel Carbonate
Dear Port Director:
This is our decision on Protest 2704-01-102065, filed by a customs broker on behalf of Metchem Inc., against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of QN Basic Nickel Carbonate.
FACTS:
Customs Laboratory Report LA20020173, dated July 27, 2002, states, in pertinent part, “[t]he sample, a light green powder described as ‘QN Basic Nickel Carbonate’ is 54% nickel by weight (dry) and has the characteristics of basic nickel carbonate (xNiCO3?yNi(OH)2?zH2O). The sample contains approximately 33% moisture. . . . While nickel carbonate contains 49.5% nickel, dehydrated basic nickel carbonate can contain up to 57.9% nickel. xNiCO3?yNi(OH) 2?zH2O is a commercial product. . . . The product is used as an intermediate in the production of nickel metal.”
According to the importer, the nickel carbonate is produced in the following manner: “Lateritice ore with a moisture content of 33% is dried to about 5% moisture in rotary dryers. The ore is ground to a fine powder. The ore is mixed with oil and fed to a reduction roaster. Nickel and cobalt are reduced at high temperatures to their crude metallic state. The ore is cooled and leached using an ammonium carbonate solution dissolving the nickel and cobalt crude metals. The metals are separated in an ammoniacal solvent extraction plant using concentrated ammonia. The nickel-ammonia solution is pumped to a steam still to recover the ammonia and nickel is then pressure filtered to the form of a wet cake (referred to as BNC), which contains about 53% nickel. It is this cake that is imported.” The importer also states that after importation the merchandise is crushed and fed into a calciner (oven) where it converts to nickel oxide, "which we sell to the catalyst, ferrite, glass people etc. . . . . It can not be sold as nickel carbonate even though that is a portion of the BASIC NICKEL COMPOUND imported." Protestant states that the imported product has the chemical formula of NiOOH(s)?NiCO3(s)?nNh3(g)?H2O and a CAS number of 12054-48-7.
The subject protest, timely filed on July 19, 2001, pertains to one entry liquidated on April 20, 2001. Protestant entered the product under subheading 7501.20.00, HTSUS, the provision for “[n]ickel mattes, nickel oxide sinters and other intermediate products of nickel metallurgy: [n]ickel oxide sinters and other intermediate products of nickel metallurgy: other.” The entry was liquidated under subheading 2836.99.50, HTSUS, the provision for “[c]arbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate: [o]ther: [o]ther: [o]ther.”
ISSUES:
What is the classification of "QN basic nickel carbonate" under the HTSUS?
LAW AND ANALYSIS:
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.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are the following:
Carbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate:
Other:
2836.99 Other
2836.99.50 Other
* * * * *
7501 Nickel mattes, nickel oxide sinters and other intermediate products of nickel metallurgy:
7501.20.00 Nickel oxide sinters and other intermediate products of nickel metallurgy
EN 28.36, states, in pertinent part, the following:
Subject to the exclusions mentioned in the introduction to this sub-Chapter, this heading covers: Carbonates (neutral carbonates, hydrogencarbonates or bicarbonates, basic carbonates) metal salts of the non-isolated carbonic acid (H2CO3), whose anhydride (CO2) falls in heading 28.11.
CARBONATES
* * * * *
(14) Nickel carbonates. Normal artificial nickel carbonate (NiCO3) is a light green powder, insoluble in water; used as a pigment in ceramics and in the preparation of nickel oxide. Hydrated basic carbonate, in greenish crystals, is used in ceramics, glass-making, electroplating, etc.
Natural basic nickel carbonate (zaratite) is excluded (heading 25.30).
EN 75.01(2) states, that “[t]he other intermediate products of nickel metallurgy” include the following:
(i) Impure nickel oxides, e.g., nickel oxide sinters, nickel oxide in powder form (“green nickel oxide”), obtained by the processing of nickeliferous sulphide or oxide ores. These impure oxides are mainly used in the manufacture of alloy steels.
Nickel oxide sinters are usually in the form of powders or in lumps up to 50 mm.
(ii) Impure ferro-nickel which, because of its high content of sulphur (0.5 % or more), phosphorus and other impurities, cannot be used as an alloying product in the steel industry without prior refining. Refined ferro-nickel is used almost solely in the steel industry to provide the nickel necessary for the manufacture of certain special steels; it is therefore classified as a ferro-alloy in heading 72.02, subject to the provisions of Note 1 (c) to Chapter 72.
(iii) Nickel speiss, i.e., a lumpy mixture of arsenides; it is not now of great commercial importance.
Hawley’s condensed Chemical Dictionary, 14th Ed., p. 783 states, in pertinent part, the following:
Nickel carbonate, basic CAS: 3333-67-3. NiCO3?2Ni(OH)2?4H2O. Properties: Light green crystals or brown powder. D 2.6. Insoluble in water; soluble in ammonia and dilute acids. Derivation: (1) In nature as the mineral zaratite. (2)Synthetically, by addition of soda ash to a solution of nickel sulfate. Use: Electroplating, preparation of nickel catalysts, ceramic colors and glazes.
Kirk-Othmer Concise Encyclopedia of Chemical Technology, 4th ed, v.17, pp 1353-4, states, in pertinent part, the following:
Nickel Carbonate. Nickel carbonate [3333-67-3], NiCO3, is a light-green, rhombic crystalline salt, density 2.6 g/cm3, that is very slightly soluble in water. The addition of sodium carbonate to a solution of a nickel salt precipitates an impure basic nickel carbonate. The commercial material is the basic salt NiCO3?2Ni(OH)2?4H2O [29863-10-3]. Nickel carbonate is prepared best by the oxidation of nickel powder in ammonia and CO2. Boiling away the ammonia causes precipitation of pure nickel carbonate.
Nickel carbonate is used in the manufacture of catalysts, in the preparation of colored glass (qv), in the manufacture of certain nickel pigments, and as a neutralizing compound in nickel electroplating solutions. It also is used in the preparation of many specialty nickel compounds.
The "Aldrich Handbook fo Fine Chemicals and Laboratory Equipment," 2002-2003 edition, cross references "Nickel carbonate, basic" with "Nickel(II) carbonate hydroxide tetrahydrate, [12244-51=8] [nickel(II) carbonate, basic] 2NiCO3?3Ni(OH) 2?4H2O." Aldrich also lists a similar substance, "Nickel carbonate, basic hydrate [39380-74-0] NiCO3?2Ni(OH) 2?H2O."
The merchandise consists of basic nickel carbonate. The importer's description of the manufacturing process of the commercial product basic nickel carbonate matches that in the technical literature. The CAS number provided by protestant, 12054-48-7, is the CAS number for nickel hydroxide, Ni(OH)2. As such, the CAS number does not match the chemical formula provided by the protestant, NiOOH(s)?NiCO3(s)?nNh3(g)?H2O. Furthermore, this information conflicts with Customs laboratory analysis of the sample provided which found that the sample "has the characteristics of basic nickel carbonate (xNiCO3?yNi(OH)2?zH2O)." It is Customs’ practice not to disregard the reports of Customs laboratories. See Customs Directive 099-3820-002, issued May 4, 1992. See also Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965).
Furthermore, protestant makes much of the color and form of the merchandise noting that the ENs describe nickel carbonate of heading 2836, HTSUS, as a light green powder. However, the product is not nickel carbonate, NiCO3, but basic nickel carbonate, (xNiCO3?yNi(OH)2?zH2O). The ENs describe hydrated basic nickel carbonate as greenish crystals. Hawley's, supra, describes basic nickel carbonate as "light green crystals or brown powder" but provides the CAS number for nickel carbonate. Arguendo, protestant’s product is a dark green cake with 52% nickel content, this color, form and nickel content can result from varying moisture content in the basic nickel carbonate. The moisture and hydration state of the basic nickel carbonate does not change its character as basic nickel carbonate.
Rather, basic nickel carbonate is a separate chemically defined compound classifiable in Chapter 28, HTSUS. EN 28.36 specifically includes basic carbonates in heading 2836, HTSUS, excluding only natural basic nickel carbonate (zaratite), in favor of classification as a mineral substance in heading 2530, HTSUS. Therefore, the instant product, synthetic basic nickel carbonate, remains classified in heading 2836, HTSUS, as a basic carbonate.
Protestant agrees that the imported product is not a nickel oxide sinter specifically mentioned in heading 7501, HTSUS, or an impure nickel oxide listed in EN 75.01. Rather, protestant claims that the imported product is an intermediate product in nickel metallurgy. EN 75.01 lists impure nickel oxides, impure ferro-nickel and nickel speiss as “other intermediate products of nickel metallurgy.” These products are derived from the process for extracting and purifying nickel. The instant merchandise is not one of the forms in the EN. While protestant states that the product is so derived, the technical literature supports our contention that basic nickel carbonate is produced separate and apart from the production of nickel metal. Protestant's argument would result in two essentially identical substances, basic nickel carbonate produced in the process of purifying metal and that produced otherwise, being classified in two completely different headings of the tariff. This was not the intention of the drafters of the tariff and would result in an administratively untenable situation. Hence, the imported product is not described by the terms of heading 7501, HTSUS, and is within the scope of heading 2836. EN(A)(14), supra.
HOLDING:
The protest should be DENIED. QN Basic Nickle Carbonate is classified in subheading 2836.99.50, HTSUS, the provision for “[c]arbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate: [o]ther: [o]ther: [o]ther.”
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 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, Acting Director
Commercial Rulings Division