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HQ 959972

JUNE 5, 1997

CLA-2 RR:TC:MM 959972 JAS


TARIFF NO.: 8111.00.45

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

RE: HQ 958935 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, Apple Computer, Inc. v. United States, Anval Nyby Powder AB v. United States

Dear Mr. Rehm:

In a letter, dated November 14, 1996, on behalf of Manganese Metal Company (Proprietary) Limited, you ask that we reconsider a ruling to you, HQ 958935, dated October 4, 1996, classifying electrolytic manganese powder (EMP) as unwrought manganese, in subheading 8111.00.45, Harmonized Tariff Schedule of the United States. You restate the contention that EMP is classifiable as other manganese, in subheading 8111.00.60, HTSUS.


The decision in HQ 958935 represented an affirmation of DD 818858, dated February 15, 1996, in which the Port Director of Customs, Champlain, NY, confirmed the subheading 8111.00.45, HTSUS, classification. As described, EMP is 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 the production of alloy steel to increase mechanical properties. In this case, however, the flakes are further processed into EMP by being washed and dried, degassed to remove hydrogen gas, screened to - 2 -
remove fines, the larger flakes tending to have more impurities, then milled to powder form, sized, and stabilized. EMP is said to be used for alloy additions to specialty steel and aluminum, in making welding electrodes, and for manufacturing manganese-based chemicals and electronic components.

You maintain that the decision in HQ 958935 is incorrect for two reasons: (1) it disregards arguments you made that the order and structure of HTS Section XV repeatedly recognizes by express language that powders are not a form of unwrought metal but stand as separate and distinct products, plus the fact that the drafters of the HTSUS did not see fit to include "powder" in the Section XV, Additional U.S. Note 1 definition of "unwrought" can only mean that powders cannot be considered unwrought for tariff purposes, and, (2) the decision misinterprets a judicial decision on substantially similar merchandise that you cite in support of the subheading 8111.00.60 classification.

The provisions under consideration are as follows:

8111.00 Manganese and articles thereof, including waste and scrap:


8111.00.45 Unwrought manganese...14 percent

8111.00.60 Other...4.8 percent


Whether EMP is a manufactured primary form similar to the metals listed in Section XV, Additional U.S. Note 1.


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.

Regarding your first contention, we gave full and careful consideration to your claim that Congress did not consider powders to be unwrought for purposes of Section XV. However, we decided that no definitive conclusions could be drawn from the order and structure of Section XV because the tariff treatment of powders in Section XV is not uniform. For this reason, and also because we believe our discussion concerning your second contention is key to resolving this matter, we did not specifically address your claim as to Congressional intent. See Apple Computer, Inc. v. United States, Slip Op. 90-111 (Ct. Int'l Trade, decided October 19, 1990). The provisions involved here are in heading 8111.00. Viewing those provisions as drafted, it is our opinion that there is no legal reason why EMP cannot be considered unwrought if it is a manufactured primary form similar to the exemplars listed in the Section XV, Additional U.S. Note 1 definition of the term "unwrought."

Your second contention is that we have misinterpreted a recent Court of International Trade decision, Anval Nyby Powder AB v. United States, Slip Op. 96-80 (Ct. Int'l Trade, decided May 21, 1996), cited in support of your proposed classification. 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 used in Section XV, Additional U.S. Note 1 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 contention on pp. 3 and 4 of your November 14, 1996, submission is that EMP does not require further processing or a secondary operation in order to be used in an actual application. In that sense, you conclude that EMP is itself a final end product. We do not agree with this conclusion. The record reflects that in each of its stated intended applications the EMP must undergo some further processing which changes its form or shape before becoming part of a finished good. For example, as an additive in making specialty steel and aluminum, and in the - 4 -
manufacture of manganese-based chemicals and electronic components EMP changes from powder to an intermediate molten state. You do not outline the process of making welding electrodes, but in this application the EMP necessarily changes from a powder to some other intermediate form. In none of these applications does the resulting product possess the dimensional features of the EMP. Anval Nyby, at p. 46.

For these reasons, we remain of the opinion that the EMP in issue is a manufactured primary form similar to the exemplars listed in Section XV, Additional U.S. Note 1, HTSUS. The EMP is unwrought manganese for tariff purposes.


Electrolytic Manganese Powder (EMP) is provided for in heading 8111.00. It is classifiable in subheading 8111.00.45, HTSUS, as unwrought manganese. HQ 958935, dated October 4, 1996, is affirmed.


John Durant, Director
Tariff Classification

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