CLA–2 OT:RR:CTF:TCM H070633 AMM
Mr. Jason M. Baljevich
Okaya USA Inc.
6250 N. River Rd., Suite 3000
Rosemont, IL 60018
RE: Reconsideration of New York Ruling Letter N065016; classification of sintered manganese tablets
Dear Mr. Baljevich,
This is in response to your undated request for reconsideration, made on behalf of Okaya, U.S.A., Inc. (Okaya), of New York Ruling Letter (NY) N065016, dated July 15, 2009, which pertains to the classification of electrolytic sintered manganese tablets, under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we have also taken into consideration your original submission, dated June 11, 2009.
FACTS:
The manganese tablets at issue are converted from a powder form to a tablet form by a process known as solid-state sintering. The process of refinement was described in your June 11, 2009, submission as follows:
1. Mn is electrolytically separated (electro-chemical reaction by which a chemical vat consisting of an anode and cathode in a chemical solution “electrolyte” are subjected to an electric current and form solid solutions/metals out of a dissolved state).
2. Mn is scraped from Cathode/Anode.
3. Mn is powderized.
4. Mn powder is poured into a tablet mold and then pressed with an amount of heat. The powder agglomerates and takes the form of a tablet. This process is known in powder metallurgy as solid-state sintering.
5. Mn Tablets are allowed to cool and then are packaged for delivery.
This process creates metal tablets that are between 97% and 99% manganese, with the balance being various other metals. Each tablet is disk shaped, has a diameter of 30 to 50mm, and weighs approximately 250g. The tablets are not machined or processed in any other way after they are formed.
In NY N065016, Customs and Border Protection (CBP) classified the manganese tablets under heading 8111, HTSUS, specifically under subheading 8111.00.49, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Unwrought manganese: Other”. In your request for reconsideration, you argue that the tablets are properly classified under subheading 8111.00.60, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Other”.
ISSUE:
Are the electrolytic sintered manganese tablets properly classified under subheading 8111.00.49, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Unwrought manganese: Other”, or under subheading 8111.00.60, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Other”?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The 2011 HTSUS provisions at issue are as follows:
8111.00 Manganese and articles thereof, including waste and scrap:
Other:
Unwrought manganese:
8111.00.49 Other
------------------------------------------------------------------------
8111.00.60 Other
Additional U.S. Note 1 to Section XV (the Note) states:
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 that the manganese tablets are classified in heading 8111, HTSUS, as articles of manganese. Rather, the issue is the proper classification at the 8-digit subheading level. As a result, GRI 6 applies.
GRI 6 states: For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
Specifically, the issue is whether the manganese tablets are “unwrought”, as that term is defined in Additional U.S. Note 1 to Section XV. If the tablets fit the definition of “unwrought,” then they are properly classified under subheading 8111.00.49, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Unwrought manganese: Other”. If they do not fit the definition of “unwrought,” then they are properly classified under subheading 8111.00.60, HTSUS, which provides for “Manganese and articles thereof, including waste and scrap: Other: Other”.
The disk shaped tablets are manufactured primary forms, similar to the ones listed in Additional U.S. Note 1 to Section XV. Moreover, they are a sintered form, and have not been otherwise machined or processed. In fact, you noted that after sintering, the tablets are allowed to cool and then packaged. As such, they are “unwrought.”
In your original ruling request, you argue that “sintered products that haven’t been machined or processed (except those that are trimmed, scalped or descaled) are ‘wrought’”, or fall outside the definition of “unwrought” contained in the Note. This interpretation of the Note is incorrect.
To be clear, the Note does not exclude all sintered forms. According to the Note, “the term ‘unwrought’ does not cover … cast or sintered forms which have been machined or processed otherwise than by simple trimming, scalping or descaling.” See Additional U.S. Note 1 to Section XV. Thus, it excludes “sintered forms which have been machined or processed otherwise than by simple trimming, scalping or descaling.” It also, for example, excludes “cast … forms which have been machined or processed otherwise than by simple trimming, scalping or descaling.”
You cite Headquarters Ruling (HQ) H015795, dated December 11, 2008, in support of your position. Specifically, in your letter, you quote HQ H015795 as stating: “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 not covered by the term ‘unwrought’”. Furthermore, you quote HQ H015795 as stating: “Our position here is supported inconsistent with New York Ruling Letter (NY) M85536, dated August 21, 2006, and in NY K82081, dated December 31, 2003 …”.
The passages you quote were part of a draft version of HQ H015795 that was mistakenly uploaded to CROSS on March 3, 2009, and removed on July 17, 2009. The facts, holding and other portions of the analysis of the version of HQ H015795 which you cite to are consistent with the final and correct version of HQ H015795 currently posted on CROSS. The statements you cite to in the draft version of H015795 constitute “clerical error” under 19 U.S.C. §1625(c)(1), and the replacement of the draft version with the correct and final version was a modification to correct the clerical error, not subject to the notice and comment requirements of 19 U.S.C. §1625(c). The final version of the ruling does not contain the language that you cite.
Based on all the foregoing, we conclude that your manganese tablets are “unwrought,” pursuant to Additional U.S. Note 1 to Section XV, because they are metal in a manufactured primary form, and they do not undergo machining or processing other than sintering. Therefore, the tablets are properly classified nder heading 8111, HTSUS, specifically 8111.00.49, HTSUS. This analysis is consistent with NY K82081, dated December 31, 2003, and NY M85536, dated August 21, 2006.
HOLDING:
By application of GRI 6, the sintered manganese tablets are classified under heading 8111, HTSUS, specifically under subheading 8111.00.49, HTSUS, which provides for: “Manganese and articles thereof, including waste and scrap: Other: Unwrought manganese: Other”. The column one general rate of duty is 14% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N065016, dated July 15, 2009, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division