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HQ 955399


APRIL 28, 1994

CLA-2:CO:R:C:M 955399 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8111.00.45

District Director of Customs
1 E. Bay St., Rm. 104
Savannah, GA 31401

RE: PRD 1703-93-100148; Electrolytic Manganese Powder; Briquetting Manganese; Unwrought Manganese; Other Manganese, Subheading 8111.00.60; Similar Primary Manufactured Form; Section XV, Note 5, and 6(b), Additional U.S. Note 2; NY 806462, NY 846012

Dear Sir:

This is our decision on Protest No. 1703-93-100148, filed against your classification of certain manganese powder from Switzerland. The entry in question was liquidated on July 23, 1993, and this protest timely filed on October 21, 1993.

FACTS:

The merchandise in issue is variously described as manganese/iron power, electrolytic manganese, briquetting manganese and manganese briquetting powder. It is a proportionately blended mixture of manganese and iron powder of which manganese predominates by weight. This powder 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, then crushed and sized.

The merchandise is a powder which, after importation, is agglomerated under pressure into briquettes and used as an additive in the production of alloy steel to increase mechanical properties.

The merchandise was entered under the provision for other manganese and articles thereof, in subheading 8111.00.60, Harmonized Tariff Schedule of the United States (HTSUS). The concerned import specialist determined that the product was unwrought for tariff purposes and liquidated the entry under subheading 8111.00.45, HTSUS, as unwrought manganese. - 2 -

Counsel for protestant makes the following arguments in support of the entered classification: a ruling to protestant under the TSUS classified the merchandise as an article of base metal, the parallel provision under the HTSUS being subheading 8111.00.60; manganese powder is not enumerated as an unwrought form of base metal in the legal note defining the term; in the statutory scheme of Chapter 81, powders are an independent category of goods mutually exclusive from and not a subcategory of unwrought metals; and, various HQ rulings support the proposition that powders are not an unwrought form of base metals.

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...5.5 percent

ISSUE:

Whether manganese/iron powder is unwrought for tariff purposes.

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.

The merchandise is provided for in heading 8111 because it is a mixture of two or more base metals with manganese predominating by weight. Section XV, Note 5, HTSUS. Moreover, it is a powder for tariff purposes. Section XV, Note 6(b), HTSUS. Finally, it is an unwrought form of metal. Section XV, Additional U.S. Note 2, HTSUS.

GRI 3(a) states that where goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred. Under the authority of GRI 3(a), applied at the subheading level by GRI 6, the provision for unwrought manganese, if it applies, would be more specific when compared to a provision for other manganese. - 3 -

Counsel correctly notes that powders are not among the listed exemplars in the legal note defining unwrought forms; the issue, however, is whether powders are manufactured primary forms "similar" to the exemplars listed in the note. Counsel argues that the enumerated unwrought forms all have a common characteristic not shared by powders, to which powders are not similar. Unlike the enumerated unwrought forms which are suitable for direct addition to steel heats as additives, manganese powders cannot be added directly to steel heats because their fineness results in their being unevenly distributed in the melt or exhausted as dust. Powders must first be agglomerated into briquettes; it is the briquettes that are added to the melt.

Congress' omission of powders from the cited U.S. note may render the note ambiguous. In such cases, the obligation is to construe the note as to eliminate anomalous or inconsistent results as not reflective of legislative intent. Counsel's proposed classification would mean that electrolytic manganese powder is not an unwrought product but becomes unwrought after further processing into briquettes. This is such an anomalous result. A metal powder which has been advanced beyond the primary stage cannot be returned to the primary stage by processing it to a more advanced form. The more logical interpretation is that the briquetting of electrolytic manganese powder advances one primary form of base metal to another primary form.

NY 806462, dated July 20, 1983, issued to counsel for protestant, classified electrolytic manganese powder under item 658.00, Tariff Schedules of the United States (TSUS). Such rulings would ordinarily be regarded as instructive in a case- by-case basis in the classification of identical merchandise under the HTSUS, where the language previously interpreted remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. NY 806462 is not instructive here because it is believed to be incorrect. Mixtures were classified under the TSUS as they are under the HTSUS. As such, under the TSUS, this merchandise should have been classified in item 632.30, as unwrought manganese. NY 018933, dated July 24, 1972, reflects the correct classification of electrolytic manganese under the TSUS.

The HTSUS rulings counsel cites, HQ 088517, HQ 950031 and HQ 952242, all involve base metals other than manganese in which provisions for powders were in competition with provisions for unwrought base metal. These rulings are inapplicable here because there is no provision for manganese powder in the HTSUS. NY 846012, dated October 19, 1989, reflects the correct classification of electrolytic manganese under subheading 8111.00.45, HTSUS. - 4 -

HOLDING:

Under the authority of GRI 1, electrolytic manganese powder is provided for in heading 8111. It is classifiable in subheading 8111.00.45, HTSUS, as unwrought manganese.

The protest is 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. 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, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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