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HQ 958935




OCTOBER 4, 1996

CLA-2 RR:TC:MM 958935 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8111.00.45

John B. Rehm, Esq.
Dorsey & Whitney
1330 Connecticut Avenue, N.W., Suite 200
Washington, D.C. 20036

RE: DD 818859 Affirmed; Electrolytic Manganese Powder; Unwrought Manganese, Unwrought Metal, Other Manganese, Subheading 8111.00.60, Similar Manufactured Primary Form, Section XV, Additional U.S. Note 1; HQ 955399, Anval Nyby Powder AB v. United States, Slip Op. 96-80

Dear Mr. Rehm:

In a letter, dated February 26, 1996, on behalf of Manganese Metal (Proprietary) Company Limited, you ask that we reconsider a ruling issued by Champlain, NY, Customs, on electrolytic manganese powder. Additional arguments were made at a meeting in our office on July 29, 1996, and confirmed by letter, dated September 18, 1996.

FACTS:

In DD 818858, dated February 15, 1996, the Port Director of Customs, Champlain, NY, held that certain electrolytic manganese powder (EMP) was classifiable in subheading 8111.00.45, Harmonized Tariff Schedule of the United States (HTSUS), as other unwrought manganese. The merchandise was described as being at least 99.5 percent by weight manganese metal, 100 percent of which will pass through a sieve having a mesh aperture of 1 millimeter.

This material 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. You state that many companies use manganese flakes in - 2 -
the production of alloy steel to increase mechanical properties. In this case, however, the flakes are washed and dried, degassed to remove hydrogen gas, screened to remove fines or larger flakes tending to have more impurities, then milled to powder form, sized, then stabilized for specialized welding applications by processing with a chemical oxidizing agent. In addition to this use, EMP is said to be used for alloying aluminum, and for manufacturing manganese-based chemicals and electronic components.

In arguing that EMP is classifiable as other manganese, you note that powders are not enumerated within the term "unwrought," as defined in Section XV, Additional U.S. Note 1, HTSUS, and that, as a matter of law, they cannot be regarded as unwrought for tariff purposes; powders are an independent category of goods mutually exclusive from and not a subcategory of unwrought metals. You note that under the HTSUS three new products, flattened pellets, rounds and rondelles, were added to the definition of the term "unwrought." You conclude that failure to include powder is an indication that Congress never intended that it be considered unwrought for tariff purposes. Moreover, you contend that, as a matter of fact, it is the magnesium flakes that are the primary manufactured form of magnesium, and that EMP is well advanced beyond a manufactured primary form of the type contemplated by that Note. In fact, EMP is increasingly used as a final, as opposed to an intermediary, product. Finally, you note that none of our major trading partners classify base metal powders in unwrought provisions.

The provisions under consideration are as follows:

8111.00 Manganese and articles thereof, including waste and scrap:

Other:

8111.00.45 Unwrought manganese...14 percent

8111.00.60 Other...4.8 percent

ISSUE:

Whether EMP 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.

As previously stated, we agree that the merchandise is a powder for tariff purposes, and that it is provided for in heading 8111.00 because, in accordance with Section XV, Note 5, HTSUS, it is a mixture of two or more base metals with manganese predominating by weight.

You interpret a recent Court of International Trade decision to support your proposed classification. We do not agree. In 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 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 Additional U.S. Note 1, the Court noted that the cobalt powder was not itself a final good. It was later processed as to become a part of a finished good, and that apart from that finished good, it had no apparent utility. The record reflects that the EMP in issue is used to manufacture aluminum products, welding rods, manganese chemicals like acetate, and electronic components like ferrites. It is reasonable to conclude that these are final products of the type envisioned by the Anval Nyby court and that apart from these products EMP has no apparent utility.

We conclude that the EMP in issue is a manufactured primary form similar to the exemplars in Section XV, Additional U.S. Note 1, HTSUS. The EMP is unwrought manganese for tariff purposes. Substantially similar issues were the subject of HQ 955399, dated April 28, 1994.

HOLDING:

Electrolytic Manganese Powder (EMP) is provided for in heading 8111.00. It is classifiable in subheading 8111.00.45, HTSUS, as unwrought manganese. DD 818859, dated February 15, 1996, is affirmed.

Sincerely,

John Durant, Director
Tariff Classification

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