CLA-2 CO:R:C:G 087543 AJS
Mr. Rufus E. Jarman, Jr.
Barnes, Richardson & Colburn
Attorneys & Counsellors at Law
475 Park Avenue South
New York, N.Y. 10016
RE: Duralcan; cermets; subheading 8113.00.00; subheading
7601.20.90; subheading 7601.20; Explanatory Note 81.13; Section
XV, note 3(c); alloys; Chapter 76, General Explanatory Notes;
McGraw-Hill Encyclopedia of Science and Technology; Ceramics
Glossary; Hawley's Condensed Chemical Dictionary; General Note
3(c)(vii)(B); United-States Canada Free Trade Agreement.
Dear Mr. Jarman:
Your letter of April 23, 1990, requesting a tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUSA), has been referred to this office for reply.
FACTS:
The merchandise in question is "Duralcan". It is a metal
matrix composite material consisting of standard grades of
aluminum alloy ingot into which ceramic articles are dispersed
while the metal is in a molten state. There are two basic types
of Duralcan. "Castable" Duralcan is composed of 33 percent
silicon carbide particles and aluminum alloy. "Unwrought"
Duralcan is composed of approximately 22 percent aluminum oxide
particles and aluminum alloy.
ISSUE:
Whether Duralcan is properly classifiable within subheading
8113.00.00, HTSUSA, which provides for cermets and articles
thereof, including waste and scrap; or classifiable within
subheading 7601.20.90, HTSUSA, which provides for other
unwrought aluminum alloys.
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LAW AND ANALYSIS:
Subheading 8113.00.00, HTSUSA, provides for cermets and
articles thereof. Explanatory Note (EN) 81.13 states that
"[c]ermets 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." Duralcan is a composite material consisting of
aluminum alloy ingot into which ceramic particles are dispersed
while the metal is in a molten state. This type of product
satisfies the description of a cermet.
The ceramic constituent of cermets usually consists of
oxides, carbides, borides etc. EN 81.13. Duralcan consists of
silicon carbide or aluminum oxide particles. The metal component
of a cermet consists of a powdered metal (e.g. iron, nickel,
aluminum, chromium, cobalt). EN 81.13. Duralcan consists of
aluminum alloy. Counsel for the importer claims that aluminum
alloy is not a powdered metal and therefore Duralcan cannot be
considered a cermet. However, The ENs state that cermets may be
made by sintering, by dispersion or "other processes." EN 81.13.
Duralcan is obtained by mixing ceramic particles into a molten
aluminum alloy. Customs considers this process to be an "other
process" within the meaning of this subheading.
This conclusion regarding "other processes" is supported by
the section notes for chapters 76 and 81. Section XV, note 3(c)
states that the term "alloys" includes sintered mixtures of metal
powders, heterogeneous intimate mixtures obtained by melting
(other than cermets) and intermetallic compounds. This legal
note indicates that a cermet may be obtained by melting.
Furthermore, it indicates that an article cannot be considered an
"alloy" for tariff purposes if it is a cermet. The metal
component of Duralcan is an aluminum alloy but Duralcan as a
whole satisfies the description of a cermet. Therefore, Duralcan
cannot be classified as aluminum alloy within subheading
7601.20, HTSUSA.
The exclusion of Duralcan from classification within
subheading 7601.20, HTSUSA, as an aluminum alloy is also
supported by the ENs to Chapter 76. The principal aluminum
alloys which may be classified in this chapter under the
provisions of note 3 to Section XV are: aluminum (Al)-copper (Cu)
alloys, Al-zinc-Cu alloys, Al-silicon (Si) alloys, Al-manganese
(Mn)-magnesium (Mg) alloys, Al-Mg-Si alloys, Al-Cu-Mg-Mn alloys,
Al-Mg alloys, Al-Mn alloys, Al-zinc-Mg alloys. Chapter 76,
General ENs. Most of these alloys may also contain small
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quantities of iron, nickel, and chromium. Chapter 76, General
ENs. These listed alloys are all essentially metal/metal
mixtures. Duralcan is not composed of any of these combinations
of materials. As stated previously, Duralcan is composed of
aluminum alloy (i.e., a metal)/silicon carbide or aluminum oxide
(i.e., ceramics). These ENs lend additional support to the above
stated conclusion that Duralcan is not an aluminum alloy within
the meaning of subheading 7601.20, HTSUSA.
The ENs list a metal and an oxide (e.g., aluminum-aluminum
oxide etc.) and a metal and a carbide as types of components used
to produce some of the most important cermets. EN 81.13 (1) &
(3). Duralcan is obtained from the mixing of an aluminum alloy
and aluminum oxide or silicon carbide. The ceramic components of
cermets may be metallic oxides, carbides, borides, silicides,
nitrides or mixtures of these compounds. McGraw-Hill
Encyclopedia of Science and Technology (McGraw-Hill), vol. 3, p.
419 (1987). The metallic components of cermets include a wide
variety of metals whose selection depends on the application of
the respective cermet. McGraw-Hill p. 419. Aluminum, aluminum
oxide and silicon carbide are all described as proper components
of cermets. McGraw-Hill p. 419. Accordingly, Duralcan is
produced from the type of materials required to obtain a cermet.
A cermet is described as "[a] composite material or article
comprised of a ceramic and a metal, interdistributed in any of
various geometrical forms but intimately bonded together." The
American Ceramic Society, Ceramic Glossary, p. 14 (1984). In
addition, a cermet is described as "[a] semisynthetic product
consisting of a mixture of ceramic and metallic components having
physical properties not found solely in either one alone, e.g.,
metal, carbides, borides, oxides and silicides." Hawley's
Condensed Chemical Dictionary, 11th edition, p. 242. Duralcan
satisfies these descriptions of a cermet.
Counsel for the importer claims that Duralcan will be
produced in Canada. The United-States Canada Free Trade
Agreement ("CFTA") states in part:
goods imported into the customs territory of the United
States are eligible for treatment as "goods originating in
the territory of Canada" only if--
(1) they are goods wholly obtained or produced in the
territory of Canada and/or the United States, or
(2) they have been transformed in the territory of
Canada and/or the United States, so as to be
subject--
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(I) to a change in tariff classification as
described in the rules of subdivision
(c)(vii)(R) of this note, or
(II) to such other requirements subdivision
(c)(vii)(R) of this note may provide when no
change in tariff classification occurs, and
they meet the other conditions set out in
subdivisions (c)(vii)(F), (G), (H), (I), (J),
and (R) of this note.
General Note 3(c)(vii)(B), HTSUSA, as amended by
Presidential Proclamation 6142 of May 25, 1990.
Information has not been provided to establish whether or not
Duralcan is a good originating in the territory of Canada.
Accordingly, status under the CFTA cannot be determined at this
time.
HOLDING:
Duralcan is classifiable within subheading 8113.00.00,
HTSUSA, which provides for cermets dutiable at the rate of 5.5
percent ad valorem. Status under the CFTA cannot be determined
at this time.
Sincerely,
John Durant, Director
Commercial Rulings Division