CLA-2-38:OT:RR:NC:N1:239
Ms. Linda Quinones
Rio Tinto
4700 Daybreak Parkway
South Jordan, UT 84009
RE: The tariff classification, country of origin and status under the North American Free Trade Agreement (NAFTA) for Hall Cell Bath, Pure with Beryllium
Dear Ms. Quinones:
In your initial letter dated September 12, 2014, on behalf of your client, Aluminerie Alouette – which is part of the Rio Tinto group of companies - you requested a ruling on tariff classification, country of origin marking exemption, and status under the North American Free Trade Agreement (NAFTA) for the Hall Cell Bath, Pure with Beryllium, from Canada. Samples of the Hall Cell Bath, Pure with Beryllium, were provided to this office on September 28, 2015. The information was submitted to the CBP laboratory for analysis and your sample will not be returned. We regret the delay.
FACTS:
According to the information provided and subsequent submissions, the instant product, consisting of crushed/bagged residue, is a by-product of the aluminum smelting process. This residue is a mixture of 78% sodium hexafluoroaluminate (CAS#15096-52-3), 13% aluminum trifluoride (CAS#7784-18-1), 6% calcium fluoride (CAS#7789-75-5), 1% quartz (CAS#14808-60-7) 1% aluminum oxide (CAS#1344-28-1), 1% ferric oxide (CAS#1309-37-1), and 1% carbon (CAS#7440-44-0).
Upon review by the CBP laboratory, the sample you submitted is composed principally of three compounds: sodium hexafluoroaluminate, a second compound of sodium, fluorine, and a third compound of sodium, calcium, fluorine, and aluminum. There were some minor additional compounds which could not be determined. Note that the laboratory stated that any carbon compounds would have been consumed in the process.
Aluminum is produced when alumina is dissolved in a cryolite bath inside large, carbon lined cells called pots. When a powerful electric current is passed through the bath, aluminum metal separates from the chemical solution and is siphoned off. The Hall Cell Bath, Pure with Beryllium, is a by-product resulting from the combination of alumina (Al2O3) and aluminum fluoride (AlF3) which are added to the pots to smelt aluminum. The excess bath (a mixture of cryolite, aluminum fluoride, and alumina), which is a crust of frozen electrolyte formed over the molten aluminum as electrolysis proceeds, is tapped and cooled down. It is then crushed and bagged to be used to restart a smelting pot when necessary.
The primary use of the Hall Cell Bath, Pure with Beryllium, is for the start-up and/or commissioning of aluminum smelting pots and plants with Soderberg technology. The bath is used for their continuous operation. The secondary use of the Hall Cell Bath, Pure with Beryllium, is its use as an additive material in fluxes.
Your correspondence indicates that the finished product is manufactured in Quebec, Canada at Aluminerie Alouette and exported directly from Canada to the USA to Century Aluminum of Kentucky, Scepter Inc., Noranda Aluminum Inc., and other U.S. buyers.
ISSUE:
What are the classification, status under the North American Free Trade Agreement (NAFTA), and country of origin of the subject merchandise? Additionally, is this product exempt from country of origin marking requirements?
CLASSIFICATION:
You state that the subject merchandise is likely classified in subheading 2836.30.0000, Harmonized Tariff Schedule of the United States (HTSUS) - Carbonates; peroxocarbonates (percarbonates); commercial ammonium carbonate containing ammonium carbamate: Sodium hydrogen carbonate (sodium bicarbonate).
Further, Chapter 28, Note 1(a), states: Except where the context otherwise requires, the headings of this chapter apply only to: Separate chemical elements and separate chemically defined compounds, whether or not containing impurities. However, the subject merchandise is a mixture of chemical substances which precludes classification in Chapter 28.
The applicable subheading for the Hall Cell Bath, Pure with Beryllium, will be in subheading 3824.90.3900, HTSUS, which provides for: Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Mixtures of two or more inorganic compounds: Other. The rate of duty will be free.
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 https://hts.usitc.gov/current.
NAFTA - LAW AND ANALYSIS:
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that:
For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as “goods originating in the territory of a NAFTA party” only if--
(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or
(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or
(iv) they are produced entirely in the territory of Canada, Mexico and/or the United States but one or more of the non-originating materials falling under provisions for “parts” and used in the production of such goods does not undergo a change in tariff classification because--
(A) the goods were imported into the territory of Canada, Mexico and/or the United States in unassembled or disassembled form but were classified as assembled goods pursuant to general rule of interpretation 2(a), or
(B) the tariff headings for such goods provide for and specifically describe both the goods themselves and their parts and is not further divided into subheadings, or the subheadings for such goods provide for and specifically describe both the goods themselves and their parts,
provided that such goods do not fall under chapters 61 through 63, inclusive, of the tariff schedule, and provided further that the regional value content of such goods, determined in accordance with subdivision (c) of this note, is not less than 60 percent where the transaction value method is used, or is not less than 50 percent where the net cost method is used, and such goods satisfy all other applicable provisions of this note.
Based on the information provided and subsequent submissions, the final product contains non-originating materials (i.e. those that were produced in countries other than Canada, the United States, or Mexico). As a result, to qualify for NAFTA treatment under the terms of General Note 12(b)(ii)(a), each non-originating material must undergo the change in tariff classification set forth in General Note 12(t).
The relevant change in tariff classification rule for subheading 3824.90, states, in part, the following:
A change to any other good of subheading 3824.90 from any other chapter, except from chapters 28 through 37.
The Hall Cell Bath, Pure with Beryllium contains materials from countries outside the NAFTA territory, including Brazil. Based on initial information provided and subsequent submissions, the materials do not undergo the required change in tariff classification and, therefore, this request for NAFTA originating status cannot be granted on the basis of General Note 12(b), HTSUS.
COUNTRY OF ORIGIN - LAW AND ANALYSIS:
As stipulated in 19 CFR 134.1(b), "country of origin" is defined as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the ‘country of origin’ within the meaning of this part; however, for a good of a NAFTA country, the NAFTA Marking Rules determine the country of origin.” The NAFTA Marking Rules are defined, per 19 CFR 134.1(j), as the rules promulgated for purposes of determining whether a good is a good of a NAFTA country, and said rules are set forth in 19 CFR 102.
Section 102.11 of the regulations (19 CFR 102.11) sets forth the hierarchy for determining the country of origin under the NAFTA marking rules. Specifically, 19 CFR 102.11(a)(3) states, “The country of origin of a good is the country in which: ‘Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in § 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.’”
The relevant rule states, in part, the following:
A change to any other good of subheading 3824.71 through 3824.90 from any other subheading,
including another subheading within that group, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound.
As has been established above, the Hall Cell Bath, Pure with Beryllium is not wholly obtained or produced in a single country, nor is it produced exclusively of domestic (i.e. Canadian) materials. Based on initial information provided and subsequent submissions, the Hall Cell Bath, Pure with Beryllium does not meet the requirements stipulated in 19 CFR 102.
COUNTRY OF ORIGIN – MARKING EXEMPTION
The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked as legibly and indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.
In both your September 12, 2014, and July 20, 2015 letters, you state that the product, Hall Cell Bath, Pure with Beryllium, falls under 19 CFR §134.32 (e), General exceptions to marking requirements: Articles which are crude substances.
Due to the advancement and mixture of several compounds to form a new mixture, Hall Cell Bath, Pure with Beryllium, the product is not exempt from marking requirements. Since the product is packed in a bag, the bag must be marked with the country-of-origin.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181). Should it be subsequently determined that the information furnished is not complete and does not comply with 181.100(a)(2), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted.
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 Patrick Day at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division