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HQ 964702




NOVEMBER 26, 2001

CLA-2 RR:CR:GC 964702 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.30.00

Port Director of Customs
2350 N Sam Houston Pkwy E, Suite 1000
Houston, TX 77032

RE: Protest 5301-00-100131; Magnesium Anodes for Cathodic Protection

Dear Port Director:

This is our decision on Protest 5301-00-100131, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of magnesium anodes for cathodic protection. The entries under protest were liquidated on March 2, March 23, and April 7, 2000, and this protest timely filed on May 11, 2000.

FACTS:

The merchandise at issue is magnesium anodes in two forms, both produced from ingots, typically 99.8 percent magnesium, by weight. The first article, a cast magnesium anode, consists of magnesium cast around an iron or steel core. The second article, an extruded magnesium ribbon anode, is produced in standard 1,000-foot coils. Specifications for this type anode include a core wire but the literature provides no further description of this component. Both anodes will be attached to a cathode (usually a buried pipe or metal structure) that is being electrolytically protected from rust and corrosion. Typically, a steel wire will be welded to the protruding steel core of the first type anode and then attached to the cathode. The ribbon-type anode will be laid parallel to the article being protected. Steel wires are welded to the anode at various points along its length, which are then welded to the cathode.

The anodes were entered under a provision of heading 8543, HTSUS, as electrical machines and apparatus, having individual functions, not specified or included elsewhere in Chapter 85. Citing a ruling on substantially similar merchandise, your office liquidated the entries under a provision of heading 8104, HTSUS, as other unwrought magnesium.

Counsel for the protestant makes the following arguments in support of the entered provision or, alternatively, the “parts” provision of the same heading: (1) the articles are “sacrificial” anodes which, through the process of electrolysis described by heading 8543, ionic current flows from the anode to the steel article being protected, i.e., the cathode. The result is that the corrosive effect of the electrolyte from the soil is directed to the anode, thereby protecting the cathode from rust and corrosion; (2) a Customs ruling classifies high silicon iron castings to be completed after importation into impressed current anodes for cathodic protection – claimed to be substantially similar to the articles in this protest - in heading 8543; and finally, (3) a ruling from another Customs administration classifies at least the first type magnesium anode as other electrical machines and apparatus, in heading 8543.

The HTSUS provisions under consideration are as follows:

Magnesium and articles thereof, including waste and scrap:

Unwrought magnesium:

Containing at least 99.8 percent by weight of magnesium

8104.19.00 Other

8104.90.00 Other

Electrical machines and apparatus, having individual functions, not specified or included elsewhere [in chapter 84]; parts thereof:

Machines and apparatus for electroplating, electrolysis or electrophoresis:

Other machines and apparatus:

8543.89.96 Other

Parts:

8543.90.88 Other

ISSUE:

Whether the magnesium anodes for use in sacrificial cathodic protection systems are unwrought forms of magnesium of heading 8104, machines and apparatus for electrolysis of heading 8543, or parts of such apparatus.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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.

The liquidated classification was based on HQ 557046, dated May 17, 1993, which held, in part, that cast magnesium anodes were among the manufactured primary forms of metal listed in the Section XV, Additional U.S. Note 1, HTSUS, definition of the term “unwrought.” Clearly, however, molten magnesium cast around an iron or steel wire or other core does not qualify as a “form of metal” of the kind contemplated by Note 1. Subsequently, HQ 965250, dated November 20, 2001, modified HQ 557046 to reflect this fact, and to classify anodes for use in sacrificial cathodic protection systems as apparatus for electroplating, electrolysis or electrophoresis in subheading 8543.30.00. As HQ 965250 governs the classification of the anodes at issue, the principles of that decision are incorporated by reference here. For purposes of clarification, however, further discussion of the relevant issues in HQ 965250 is warranted.

Heading 8104 is in Section XV, HTSUS. Section XV, Note 1(f), HTSUS, excludes articles of Section XVI (machinery, mechanical appliances and electrical goods). So, if the anodes at issue here are found to be goods of heading 8543, and not more specifically provided for elsewhere in Chapter 85, they must be classified in heading 8543. We agree with counsel’s description of the process of electrolysis, and that machines and apparatus for electrolysis are provided for in heading 8543. It is important to note, however, that two common types of cathodic protection systems
exist, impressed current and sacrificial. Both types may be described as an electro-chemical process, a galvanic process or as electrolysis. The first type, impressed current cathodic protection, involves the application of an external current to operate. Cast magnesium anodes used with impressed current cathodic protection systems are connected to the external power source after importation. In such cases, the magnesium anodes would be considered parts solely or principally used with electrical machines and apparatus, and classifiable in subheading 8543.90.88, HTSUS. The ruling counsel cites, HQ 088175, dated May 30, 1991, classified high silicon iron castings as other electrical machines and apparatus, in subheading 8543.80.90 (now 8543.89.96), HTSUS. These, however, were incomplete or unfinished articles which, after importation, were to be completed into impressed current anodes. Even when completed, these anodes provide no galvanic protection function at all. They require the application of an external power source to operate. This was recognized in HQ 965252, dated November 20, 2001, which revoked HQ 088175 and classified the castings as “parts” in heading 8543.

The second type of cathodic protection system involves the anodes in this protest. The process involves one metal being coupled, usually through a metallic wire, to a more reactive (anodic) metal. This connection is referred to as a galvanic couple. The anode material must have a large enough natural voltage difference to produce an electrical flow through the wire to the cathode. The magnesium/iron/steel anode has a large enough natural voltage difference to independently produce a flow of electric current. No outside power is required for this system to be effective. Upon receiving current, negatively charged ions flow from the anode to the tank, pipeline or other object being protected, i.e., the cathode. This phenomenon initiates the buildup of a protective alkali layer on the cathode, thus arresting the buildup of corrosion on its surface, while gradually oxidizing or eroding the anode in the process. Hence, the term “sacrificial.” In this case, there is no indication that an independent electrical source is required for these anodes to perform their intended end use service application. Such anodes would be considered goods included in heading 8543, pursuant to Section XVI, Note 2(a), HTSUS, and classified in subheading 8543.30.00, HTSUS, in accordance with HQ 965250.

This conclusion is in concert with a successful appeal from a Revenue Canada classification decision, which counsel cites, in which in substantially similar merchandise was found to be classified in subheading 8543.30 as machines and apparatus for electroplating, electrolysis or electrophoresis. See Canadian International Trade Tribunal Appeal No. AP-96-041 (1998).

HOLDING:

Under the authority of GRI 1 and Section XVI, Note 2(a), HTSUS, the cast magnesium anodes and extruded magnesium ribbon anodes, as described, are provided for in heading 8543. They are classifiable in subheading 8543.30.00, HTSUS. The entries should be reliquidated under this provision and the protest ALLOWED.

Copies of all cited rulings are enclosed for your convenience.

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,

John Durant, Director
Commercial Rulings Division


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