CLA-2-OT: RR:CTF:TCM H096892 ML
TARIFF NO: 8113.00.00, HTSUS
Port Director
U.S. Customs and Border Protection
Cleveland Service Port
6747 Engle Road
Middleburg Heights, OH 44130
Attn: Russell Hack, IS
Re: Application for Further Review of Protest No: 4101-09-100220 aluminum composite billet.
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4101-09-100220, filed on November 5, 2009 , on behalf of Aerospace Metals Composite Ltd. (“Protestant”). Please find this office’s decision below.
FACTS:
The AFR concerns the classification, in thirteen entries, of aluminum composite billets which were originally entered under heading 7601, Harmonized Tariff Schedule of the United States (HTSUS), as unwrought aluminum. The entries were made from September 17, 2008 through June 22, 2009. The entries were liquidated on August 21, 2009 and September 4, 2009. The protest, filed on November 5, 2009, is against U.S. Customs and Border Protection’s (CBP’s) decision to liquidate the entered merchandise under heading 8113, HTSUS, as cermets and articles thereof, including waste and scrap.
The billets were examined by CBP’s laboratory twice. The CBP lab determined the composition to be 68% aluminum, and 27.8% silicon carbide, with the balance consisting of copper, magnesium, manganese, and iron. The
composition found by the CBP lab is consistent with the composition of the billets asserted by the protestant. According to the protestant, the metallic and ceramic constituents are hot pressed, using powder metallurgy to form unwrought billets (cylindrical), by the protestant. Upon importation the billets are forged (into shapes such as inner/outer struts, pistons and brake calipers) and then returned to the U.K.
Protestant contends that the product is not classifiable as a cermet on the grounds that 1) the billet is predominantly composed of aluminum and a cermet is usually less than 20% metallic content, 2) cermets are used for electronics and tooling, while these billets are used for automotive parts, and cermets could not be forged into the shapes required by the U.S. forger; and 3) the billets are not sintered but are hot pressed.
ISSUE:
Whether the imported merchandise is classifiable in heading 7601 HTSUS, as unwrought aluminum, or heading 8113, HTSUS, as cermets and articles thereof, including waste and scrap?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a classification decision. The protest was timely filed on November 5, 2009, within 180 days of liquidation of the first entry protested which liquidated on August 21, 2009. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4101-09-100220 was properly accorded to the protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to involve matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs court, but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are headings 7601 and 8113. Heading 7601, HTSUS provides for “unwrought aluminum” and heading 8113 provides for “cermets and articles thereof, including waste and scrap.”
Note 4 to Section XV defines cermets as “products containing a microscopic heterogenous combination of a metallic component and a ceramic component.” Note 4 further provides that “[t]he term “cermets” includes sintered metal carbides (metal carbides sintered with a metal).” The Explanatory notes to heading 8113 provide:
Cermets contain both a ceramic constituent (resistant to heat and with a high melting point) and a metallic constituent. The manufacturing processes used in the production of these products, and also their physical and chemical properties, are related both to their ceramic and metallic constituents, hence their name cermets.
The ceramic constituent usually consists of oxides, carbides, borides, etc.
The metal component consists of a metal such as iron, nickel, aluminium, chromium or cobalt.
Cermets are made by sintering, by dispersion or by other processes.
….
Cermets are used in the aircraft and nuclear industries and in missiles. They are also used in furnaces and metal foundries (e.g., as pots, spouts, tubes), in the manufacture of bearings, brake-linings, etc.
Note 5 to Section XV provides for the classification of “alloys” as follows:
(a) An alloy of base metals is to be classified as an alloy of the metal which predominates by weight over each of the other metals.
(b) An alloy composed of base metals of this section and of elements not falling within this section is to be treated as an alloy of base metals of this section if the total weight of such metals equals or exceeds the total weight of the other elements present.
(c) In this section the term "alloys" includes sintered mixtures of metal powders, heterogeneous intimate mixtures obtained by melting (other than cermets) and intermetallic compounds.
The EN to Chapter 76 list metal/metal combinations as the principal aluminum alloys classifiable in Chapter 76. The subject billets are composed of metal and ceramics. Moreover the EN to Chapter 76 also excludes “[p]roducts obtained by sintering aluminum and alumina” as they are considered cermets, and references their classification in heading 81.13.
The issue of whether a cermet can be classified as an alloy was addressed in HQ 087543, dated January 31, 1991. In HQ 087543, it was determined that according to the Notes to Section XV, “an article cannot be considered an ‘alloy’ for tariff purposes if it is a cermet.” As in HQ 087543, even though the metal component of the billets at issue may be classifiable as an aluminum alloy, the billets as a whole satisfy the description of a cermet. Note 5(c) to Section XV precludes the classification of a cermet as an alloy.
The protestant takes the position that because the metal content of the billet is 68%, it should not be classified as a cermet. However neither the HTSUS nor the ENs specify any limit on metal content of a cermet, or indicate that the ceramic content must predominate. With respect to the argument that “cermets” could not be used by the U.S. forge to create automotive products because of the ceramic content, the argument does not take into consideration whether the instant products are cermets for purposes of tariff classification. The argument may be true of a cermet containing a lower percentage of metal, however clearly the billets at issue are forged in the U.S. We also note that the billets are manufactured by an aerospace metal company, which is consistent with the EN statement that cermets are used in the aircraft and nuclear industries and in missiles.
The protestant also asserts that sintering is distinct from hot pressing. However sintering has been referred to as being synonymous with hot pressing. Further, EN 81.13 refers to cermets being made by “other processes” as well as by sintering. Finally, the protestant uses powder metallurgy in the manufacture of the billets, which is the process referred to in Section XV Note 5(c) (sintered mixtures of metal powders).
Based on the foregoing, we find that the subject merchandise is prima facie classifiable under heading 8113, HTSUS, because it meets the definition of “cermet” set forth in Note 4 to Section XV, HTSUS. It is thus excluded from classification as an “alloy” under heading 7601, HTSUS, by the terms of Note 5(c) to Section XV, HTSUS. Accordingly, it is specifically provided for under subheading 8113.00.0000, HTSUS, as “cermets and articles thereof, including waste and scrap.”
HOLDING:
By application of GRI 1 and Notes 4 and 5 to Section XV, HTSUS, the composite aluminum billets are classified in heading 8113, HTSUS, specifically subheading 8113.00.0000, HTSUS, as “cermets and articles thereof, including waste and scrap.” The 2008 and 2009 column one, general rate of duty, is 3.7% ad valorem.
You are instructed to DENY the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division