OT:RR:CTF:CPMM H278503 APP
Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130
Attn.: Jonathan Restivo, Supervisory Import Specialist
RE: Protest and Application for Further Review No. 4101-15-100423; Tariff classification of Benda-Lutz® 7038 aluminum powder
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 4101-15-100423, timely filed on August 17, 2015, on behalf of Benda-Lutz Werke GmbH (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Benda-Lutz® 7038 aluminum powder. We have also considered arguments made during a November 6, 2017 conference call with protestant’s counsel and a representative from the company.
FACTS:
Protestant describes the subject merchandise as an aluminum powder that is ball-milled from bulk aluminum powder to form aluminum platelets of a specified particle size distribution. The product has a broad particle size distribution. The powder is used as the key raw material in the manufacture of aluminum-based metallic effects pigments. The Safety Data Sheet, supplied by protestant, provides the following information:
Trade name: BENDA-LUTZ® 7038 Aluminum Powder
Substance name: Aluminum power (stabilised)
CAS Number: Aluminum: 7429-90-5
EC number: 231-072-3
Form: Powder
Color: grey/silver glossy
Odor: slightly waxy
In its laboratory report dated December 16, 2014, CBP Laboratories and Scientific Services, Chicago Laboratory concluded that:
The submitted sample is a can of Benda-Lutz 7038 Aluminum powder; it is grey in color and very fine in texture. Chemical analysis confirms the powder is aluminum. The particles of aluminum are randomly-shaped and sized when viewed at 1000x magnification or higher. The sample does not consist of laminar [lamellar]-type particles.
The Protest and AFR cover one entry of the subject merchandise made on September 17, 2014, under subheading 7603.20.00, HTSUS, which provides for “Aluminum powders and flakes: Powders of lamellar structure; flakes.” On February 20, 2015, the entry was liquidated under subheading 7603.10.00, HTSUS, which provides for “Aluminum powders and flakes: Powders of non-lamellar structure.” This Protest and AFR were filed on August 17, 2015, claiming classification as entered. The Protest and AFR were improperly denied by the Port Director but the denial was subsequently set aside by our office on June 10, 2016, pursuant to 19 U.S.C. § 1515(d).
ISSUE:
Whether the subject aluminum powder is classifiable as powder of non-lamellar structure under subheading 7603.10.00, HTSUS, or as powder of lamellar structure; aluminum flakes under subheading 7603.20.00, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The AFR was timely filed within 180 days of liquidation of the entries. 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 Number 4101-15-100423 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.
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 (“AUSR”). The GRIs and the AUSR are part of the HTSUS, and are 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 order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration are as follows:
7603 Aluminum powders and flakes:
7603.10.00 Powders of non-lamellar structure
7603.20.00 Powders of lamellar structure; flakes
Note 8(b) to Section XV, HTSUS (covers chapters 74 and 76, HTSUS), defines aluminum flakes as “Products of which 90 percent or more by weight passes through a sieve having a mesh aperture of 1 mm.”
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
EN 76.03 states, in relevant part, that:
This heading covers aluminium powders as defined in Note 8(b) to Section XV and aluminium flakes. In general these products correspond to those of copper and the Explanatory Note to heading 74.06 therefore applies, mutatis mutandis, to this heading. Aluminium powders and flakes are, however, also used in pyrotechnics, as heat generators (e.g., in the thermit process), to protect other metals from corrosion (e.g., calorising, metallic cementation), in rocket propellants and in the preparation of special cements.
EN 74.06 states, in relevant part, the following:
Powders of lamellar structure and flakes are normally produced by grinding foil. The lamellar shape can be seen by the naked eye or through a magnifying glass in the case of flakes, but a microscope is needed for true powders.
The method of manufacture determines such characteristics as the particle size and shape (which may be more or less irregular, globular, spherical or lamellar). Powders with a lamellar structure are often polished and may retain traces of greasy or waxy substances (e.g., stearic acid or paraffin wax) used in the course of their preparation.
The powders are used for compacting and sintering into bearings, bushings and many other technical components. They are also used as chemical or metallurgical reagents, for soldering and brazing, in the manufacture of special cements, for coating non metallic surfaces as a basis for electroplating, etc. The flakes are mainly used as a metallic pigment in the manufacture of inks and paints. The flakes are used directly as metallic colouring matter by blowing them, e.g., on to a varnished surface to which they adhere.
Protestant asserts that the subject aluminum powder is of lamellar structure and is classifiable in subheading 7603.20.00, HTSUS. Protestant cites to two New York Ruling Letters (“NY”) that classified metal powders with metal particles in the form of flakes as powders of lamellar structure. See NY J85134, dated June 2, 2003 (paperbacked aluminum foil scrap consisting of 95%-96% aluminum foil granules, 1%-3% carbon, and the balance of aluminum oxide); NY N196539, dated March 26, 2012 (bronze powder). Protestant claims that the non-lamellar powder used as an ingredient for conductive paste in Headquarters Ruling Letter (“HQ”) H161855, dated June 17, 2013, is materially different from the Benda-Lutz® 7038 aluminum powder. Protestant states that the CBP laboratory examined the product through a scanning electron microscope (“SEM”) at 1000x magnification and that at this magnification the particles were not magnified enough to allow the lamellar structure to be visible.
At GRI 1, there is no dispute that the aluminum powder is classified in heading 7603, HTSUS because this heading provides eo nomine for aluminum powders and flakes. Rather, the issue is the proper classification at the subheading level. As a result, GRI 6 applies. In accordance with EN 76.03, EN 74.06 applies, mutatis mutandis, to heading 7603.
EN 74.06 states that the shape of a lamellar particle (not the structure within the particle) can be seen by the naked eye or through a magnifying glass (in the case of flakes). The term “lamellar” is not defined in the HTSUS and the ENs. When terms are not defined in the HTSUS or the ENs, they are construed in accordance with their common and commercial meaning. See Nippon Kogaku (USA) Inc. v. United States, 69 C.C.P.A. 89, 673 F.2d 380 (1982); C.J. Tower & Sons, Inc. v. United States, 69 C.C.P.A. 128, 673 F. 2d 1268 (1982). The Fine Dictionary, at http://www.finedictionary.com/Lamellar.html, defines “lamellar” as “Flat and thin; lamelliform; composed of lamellae.”
The CBP laboratory viewed the submitted sample of Benda-Lutz® 7038 aluminum powder under SEM and determined that the substance was in powder form, in accord with the sample label and material safety data sheet supplied with the sample. See CBP laboratory report findings, supra. The CBP laboratory’s conclusion was based on the entire collection of particles and not just the larger particles in the sample.
“It is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Co. of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398, C.A.D. 1102 (1973) [hereinafter Alcoa]. Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91, 462 F. Supp. 378, 381-82, Cust. Dec. 4772 (1978) (citations omitted). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 60 C.C.P.A. at 151, 477 F.2d at 1399.
To rebut the presumption that the CBP findings are correct, protestant submitted SEM images as exhibits C-F to its August 17, 2015 Protest/AFR that were taken at magnification higher than 1000x. These images predominantly show single particles. Exhibits C and E show a flat surface of a large particle with layers on the surface. The particles in exhibits D and F also show a layered structure to each particle. The internet article on zinc flake systems from the website of Dörken MKS, a German company that purportedly calls itself “the corrosion experts,” provided by the protestant as part of its supplemental June 28, 2017 submission, contains an image of a zinc flake coating showing zinc and aluminum flakes. The merchandise at issue did not contain zinc. Even though this image from the website of Dörken MKS, supplied three years after entry of the merchandise, shows particles that have a flake or lamellar shape, the image is not of merchandise substantially similar to that in the sample supplied by protestant about two months after entry.
Hence, nothing in protestant’s submissions rebuts the presumption that the CBP laboratory was initially correct in determining that the entered merchandise did not possess a lamellar shape and was not aluminum flakes. Just like in HQ H161855, supra, the instant powder is of a non-lamellar structure and is used as the key raw material in metallic effects pigments. CBP examined the wetted spherical aluminum powder in HQ H161855 through a SEM and observed spherical particles that were not of a lamellar shape. The structure of the instant aluminum powder is also non-lamellar due to the overall shape of the particles, which have a wide range of sizes and shapes. While some of the particles here may have contained lamellae or striations, most were not of a flat, thin shape. The abundance of small rounded particles, some so small that they are not visible to the naked eye, indicates that the instant powder cannot be described by the term “lamellar.”
We note that the instant aluminum powder is distinguishable from the powder in NY N196539 and NY J85134, supra. In NY N196539, the images were taken using a white-light microscope equipped with a 100x lens and 10x eye piece (1000x total magnification). The images were of “bronze powder” and clearly showed the particles had a flake shape. Furthermore, visually inspecting individual flakes in the image and comparing to the length scale in the lower right-hand portion of the image showed the larger particles were approximately 20 µm in size. Only moderate magnification was needed to inspect the shape of several particles at once. The aluminum powder in NY J85134 was made of 95%-96% aluminum foil granules, 1%-3% carbon and the balance of aluminum oxide, and 90% of the foil granules were of a lamellar structure and would pass through a sieve having a mesh aperture of 1 mm.
Unlike the merchandise in NY N196539 and NY J85134, the instant powder is not lamellar because it consists of randomly-shaped and sized particles, and the collection of particles would not easily pass through a 1 mm aperture. The CBP laboratory employed SEM with moderate magnification (1000x) to evaluate the collection of particles and the whole particle shape. Many of the larger particles (those having a maximum span of 12-16 microns) presented a flat surface under SEM, suggesting they have been pressed, pounded, or otherwise compressed. The largest particle was 18.15 µm across the longest dimension, suggesting the collection of particles would easily pass through a 1 mm aperture. Many of the smaller particles suggested a non-flattened shape. Some of the smaller particles appeared to present a discernible thickness comparable to the span of the exposed surface, suggesting a prism shape as opposed to lamellar. Numerous smaller particles appeared round, possibly spherical, while others appeared as jagged chips scattered on, and around, the larger particles.
Since the Benda-Lutz® 7038 aluminum powder was determined by the CBP laboratory to be of non-lamellar structure based on the entire collection of particles, and protestant has not submitted evidence to the contrary regarding the sample taken at the time of entry, the merchandise is classified under subheading 7603.10.00, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject Benda-Lutz® 7038 aluminum powder of non-lamellar structure is classified under subheading 7603.10.00, HTSUS, which provides for “Aluminum powders and flakes: Powders of non-lamellar structure.” The 2014 column one, general rate of duty was 5% 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 at https://hts.usitc.gov/current.
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, through its counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry, in accordance with the decision, must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division