CLA-2-84:OT:RR:NC:N1:106
Mr. Frederick Waite
Vorys, Sater, Seymour and Pease, LLP
1909 K St. NW
Suite 900
Washington, DC 20006-1152
RE: The tariff classification of a magnesium powder making plant from South Korea.
Dear Mr. Waite:
In your letter dated January 10, 2011, you requested a tariff classification ruling on behalf of your client ESM Group, Inc. Drawings and information regarding the device were included.
The device is a system for the production of magnesium powder pellets. According to your information, the entire system is imported together. The system is quite extensive with various components that the magnesium goes through before being turned to powder. The primary purpose of the system is served by the magnesium ore being heated and melted in a furnace chamber and then forced, by blowers, through a nozzle into a chamber of cooling gas where the small particles which pass through the nozzle are cooled and form round or oval beads as a result of the cooling and magnesium’s surface tension.
In your previous submissions, you propose classifying the merchandise as a composite machine under subheading 8454.30.0090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Converters, ladles, ingot molds and casting machines, of a kind used in metallurgy or in metal foundries, and parts thereof: Casting machine … Other. Alternatively, you propose classification in subheading 8479.81.0000, HTSUS, which provides for Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: For treating metal, including electric wire coil-winders.
In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) may be utilized. The ENs provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Although not dispositive nor legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN Note (D) to heading 84.54 lists examples of the merchandise covered by this provision. These exemplars share one specific characteristic, i.e., in each example, molds are used in the casting process. You have stated that the process in question does not utilize molds. Thus, the subject merchandise is not of the same type of machines provided for in the exemplars of the ENs to heading 84.54. Classification in subheading 8454.30.0090, HTSUS, would not be appropriate as the merchandise does not fall within the scope of heading 8454, HTSUS.
EN Note (II)(E) to heading 84.79 describes the types of machines classifiable as machinery for treating metals. Examples of processes used to treat metal include scouring, pickling, tin-plating and de-sanding. The process described in your submission is not similar to the examples set forth in the cited EN. Therefore, the merchandise is not classifiable in subheading 8479.81.0000, HTSUS.
Even supposing either proposed classification applied, the merchandise would be classified in accordance with Note 2 to Chapter 84. Said note reads, in pertinent part,
Subject to the operation of Note 3 to Section XVI and subject to Note 9 to this chapter, a machine or appliance which answers to a description in one or more of the headings 8401 to 8424, or heading 8486 and at the same time to a description in one or more of the headings 8425 to 8480 is to be classified under the appropriate heading of the former group or under heading 8486, as the case may be, and not the latter group.
As the merchandise is classifiable in a heading of the former group, classification in either subheading 8454.30.0090 or subheading 8479.81.0000 would be precluded.
The applicable subheading for the magnesium powder making plant will be 8419.89.9585, HTSUS, which provides for machinery, plant…whether or not electrically heated, for the treatment of materials by a process involving a change in temperature such as heating,…or cooling,…: other machinery, plant or equipment: other: other: other, other: for other materials. The rate of duty will be 4.2 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mark Palasek at (646) 733-3013.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division