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HQ 966405

November 3, 2003

CLA-2 RR:CR:GC 966405 AM


TARIFF NO.: 2836.99.50

Mr. Thomas V. Cirigliano, President
MetChem Inc.
5490 McGinnis Village Pl. Set. 204
Alphabet, GA 30005

RE: Request for Reconsideration of HQ 965780; Protest 2704-01-102065; QN basic nickel carbonate

Dear Mr. Cirigliano:

This is in response to your letter, dated April 8, 2003, regarding Headquarters Ruling Letter (HQ) 965780, dated October 2, 2002, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of QN basic nickel carbonate. You sent a sample of the merchandise and manufacturing flow sheet with your request for reconsideration of HQ 965780.

You claim that the ruling incorrectly classifies the merchandise in subheading 2836.99.50, HTSUS, the provision for “[c]arbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate: [o]ther: [o]ther: [o]ther" based on three misconceptions on Customs' part. First, you claim that Customs incorrectly believed the merchandise was nickel carbonate due to the description on the commercial invoice. Second, you claim that Customs did not know the correct nickel content of the merchandise. Third, you claim that the tariff allows for nickel oxide products to be classified in heading 2836 or heading 7501, HTSUS, according to its physical state and use, and that the physical state and use of the instant merchandise accords with classification in heading 7501.


Customs Laboratory Report SF20031107, dated October 22, 2003, states as follows:

This sample is a slightly moist, pale green granular material. Laboratory analysis, by infrared spectrophotometry, and information from the manufacturer indicate that it is synthetic, basic nickel carbonate, CAS Number 29863-10-3. Essentially identical materials are nickel (II) carbonate (basic), CAS No. 39380-74-0 and nickel (II) hydroxide tetrahydrate, CAS No. 12244-51-8.


Is synthetic basic nickel carbonate classified as a "carbonate" or as an "other intermediate product of nickel metallurgy?"


Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS provisions under consideration are the following:

Carbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate:


2836.99 Other

2836.99.50 Other

7501 Nickel mattes, nickel oxide sinters and other intermediate products of nickel metallurgy:

7501.20.00 Nickel oxide sinters and other intermediate products of nickel metallurgy

EN 28.36, states, in pertinent part, the following:

Subject to the exclusions mentioned in the introduction to this sub-Chapter, this heading covers: Carbonates (neutral carbonates, hydrogencarbonates or bicarbonates, basic carbonates) metal salts of the non-isolated carbonic acid (H2CO3), whose anhydride (CO2) falls in heading 28.11.


(14) Nickel carbonates. Normal artificial nickel carbonate (NiCO3) is a light green powder, insoluble in water; used as a pigment in ceramics and in the preparation of nickel oxide. Hydrated basic carbonate, in greenish crystals, is used in ceramics, glass-making, electroplating, etc.

Natural basic nickel carbonate (zaratite) is excluded (heading 25.30).

EN 75.01(2) states, that “[t]he other intermediate products of nickel metallurgy” include the following:

(i) Impure nickel oxides, e.g., nickel oxide sinters, nickel oxide in powder form (“green nickel oxide”), obtained by the processing of nickeliferous sulphide or oxide ores. These impure oxides are mainly used in the manufacture of alloy steels.

Nickel oxide sinters are usually in the form of powders or in lumps up to 50 mm.

(ii) Impure ferro-nickel which, because of its high content of sulphur (0.5 % or more), phosphorus and other impurities, cannot be used as an alloying product in the steel industry without prior refining. Refined ferro-nickel is used almost solely in the steel industry to provide the nickel necessary for the manufacture of certain special steels; it is therefore classified as a ferro-alloy in heading 72.02, subject to the provisions of Note 1 (c) to Chapter 72.

(iii) Nickel speiss, i.e., a lumpy mixture of arsenides; it is not now of great commercial importance.

As described in Laboratory Report SF20031107, the merchandise is basic nickel carbonate. It is Customs’ practice not to disregard the reports of Customs laboratories. See Customs Directive 099-3820-002, issued May 4, 1992. See also Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965).

As to your first and second claims, we do not believe we were mistaken as to the name and composition of the imported merchandise. Basic nickel carbonate is a separate chemically defined compound classifiable in Chapter 28, HTSUS. EN 28.36 specifically includes basic carbonates in heading 2836, HTSUS, excluding only natural basic nickel carbonate (zaratite). Therefore, the instant product, synthetic basic nickel carbonate, remains classified in heading 2836, HTSUS, as a basic carbonate. Basic nickel carbonate is classified in subheading 2836.99.50, HTSUS, the provision for “[c]arbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate: [o]ther: [o]ther: [o]ther" as correctly analyzed in HQ 965780.

Lastly, you claim that the tariff allows for a nickel oxide product to be classified in heading 2836 or heading 7501, HTSUS, the provision for "Nickel mattes, nickel oxide sinters and other intermediate products of nickel metallurgy" according to its physical state and use. EN 75.01 lists impure nickel oxides, impure ferro-nickel and nickel speiss as “other intermediate products of nickel metallurgy.” These products are derived from the process for extracting and purifying nickel. The instant merchandise is not one of the forms stated in EN 75.01.

Furthermore, you provided a flow chart of manufacture which coincides with the description of manufacture in Kirk-Othmer Concise Encyclopedia of Chemical Technology, 4th ed, v.17, pp 1353-4, which states, in pertinent part, the following: "The addition of sodium carbonate to a solution of a nickel salt precipitates an impure basic nickel carbonate. The commercial material is the basic salt NiCO3●2Ni(OH)2●4H2O [29863-10-3]. Nickel carbonate is prepared best by the oxidation of nickel powder in ammonia and CO2. Boiling away the ammonia causes precipitation of pure nickel carbonate." Kirk-Othmer supports our contention that basic nickel carbonate is produced separate and apart from the production of nickel metal. Hence, the instant merchandise is not described by the terms of heading 7501, HTSUS. For more on the analysis of the instant merchandise with regards to heading 7501, HTSUS, please see HQ 965780.


QN basic nickel carbonate is classified in subheading 2836.99.50, HTSUS, the provision for “[c]arbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate: [o]ther: [o]ther: [o]ther.”


HQ 965780 is AFFIRMED.


Myles B. Harmon, Director

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