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HQ 955629


April 21, 1994

CLA-2 CO:R:C:M 955629 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8104.11.00

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

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