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HQ 959939




JUNE 10, 1997

CLA-2 RR:TC:MM 959939 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8111.00.45

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.

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

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