CLA-1 OT:RR:CTF:TCM H248710 ERB
TARIFF NO: 8311.90.00
Port Director, Port of Detroit
U.S. Customs and Border Protection
477 Michigan Avenue, Room 200
Detroit, MI 48226
RE: Application for Further Review of Protest No. 3801-13-100217; classification of clad aluminum alloy brazing sheets
Attn: Monica Dunbar, Import Specialist
Dear Port Director:
This is in reply to the Application for Further Review (AFR) of Protest No. 3801-13-100217, filed on May 2, 2013, on behalf of Dana Thermal Products LLC and Dana Sealing Products (Dana or Protestant). This AFR concerns U.S. Customs and Border Protection’s (CBP) tariff classification of aluminum clad brazing sheets under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was provided by Dana to CBP’s laboratories and scientific services for analysis and testing.
FACTS
The merchandise is rolled clad aluminum alloy brazing sheets, with a trade secret nickel alloy electrolytically plated to the surface. That is, the nickel alloy treatment is deposited onto the surface of the aluminum sheet using a proprietary bath formulation and preconditioning method which permits the nickel alloy treatment to adhere to the surface of the sheets. The bath formulation and preconditioning of the aluminum alloy sheets and the subsequent nickel alloy treatment adhesion occur in Canada. It is in this condition upon importation to the United States. After importation the sheet is brazed in a low-oxygen furnace to make automotive heat exchangers.
Three entries are associated with the lead protest. The first entered the United States on January 4, 2012, the second entered on January 9, 2012, and both were liquidated on November 2, 2012. The third entered on January 23, 2012 and was liquidated on November 16, 2012. The subject merchandise entered and liquidated under subheading 7606.12.60, HTSUS, which provides for, “Aluminum plates, sheets and strip, of a thickness exceeding 0.2 mm: Of aluminum alloys: Clad.” Dana claimed preferential treatment under the North American Free Trade Agreement (NAFTA) at the time of these entries.
Dana claims the proper tariff classification for the entries is under subheading 8311.90.00, HTSUS, which provides for, “Wire, rods, tubes, plates, electrodes and similar products of base metal or of metal carbides, coated or cored with flux material, of a kind used for soldering, brazing, welding or deposition of metal or of metal carbides…: Other.” That column one general rate of duty is free.
Dana submitted a sample of the subject merchandise to CBP for analysis. CBP Lab Report NY20140523, dated July 2, 2014, stated the following:
The sample is a sheet of metal with printed labels “nickel plated aluminum braze sheet fluxless” and “Dana proprietary braze promoter coating”. Laboratory analyses indicate that the sample is approximately 0.49 mm in thickness and is an aluminum alloy with silicon greater than 10%. The sample is plated with nickel.
ISSUE:
Whether the subject aluminum alloy sheets subjected to a proprietary bath formulation and electroplated with nickel alloy for use in a “fluxless” brazing process is classified as “aluminum clad alloy,” under heading 7606, HTSUS, or as a “…plate…of base metal…coated….with flux material of a kind used for…brazing” under heading 8311, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1515(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. 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. 3801-13-100217 is properly accorded to the Protestant pursuant to 19 C.F.R. §174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts. Specifically, Dana alleges that this is a case of first impression regarding base metals coated with flux materials, of Chapter 83.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
The HTSUS headings under consideration are the following:
7606 Aluminum plates, sheets and strip, of a thickness exceeding 0.2mm:
7606.12 Of aluminum alloys:
7606.12.60 Clad
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8311 Wire, rods, tubes, plates, electrodes and similar products of base metal or of metal carbides, coated or cored with flux material, of a kind used for soldering, brazing, welding or deposition of metal or of metal carbides; wire and rods, of agglomerated base metal powder, used for metal spraying; base metal parts thereof: [Emphasis added]
8311.90.00 Other
Note 1(d) to Chapter 76 states, in pertinent part:
Headings 7606 and 7607 apply, inter alia, to plates, sheets, strip and foil with patterns (for example, grooves, ribs, checkers, tears, buttons, lozenges) and to such products which have been perforated, corrugated, polished or coated, provided that they do not thereby assume the characters of articles or products of other headings.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 76 provides the following:
Products and articles of aluminum are frequently subjected to various treatments to improve the properties or appearance of the metal, to protect it from corrosion, etc. These treatments are generally those referred to at the end of the General Explanatory Note to Chapter 72, and do not affect the classification of the good.
The aforementioned General EN to Chapter 72 states the following:
(C) Subsequent manufacture and finishing
The finished products may be subjected to further finishing treatments or converted into other articles by a series of operations such as:
(2) Surface treatments or other operations, including cladding, to improve the properties or appearance of the metal, protect it against rusting and corrosion, etc. Except as otherwise provided in the text of certain headings, such treatments do not affect the heading in which the goods are classified. They include:
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Surface finishing treatment, including;
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(iv) Coating with metal (metallization) …
Coating with non-metallic substances, e.g., enameling, varnishing, lacquering, painting, surface printing, … , etc.
Immersion in a bath of molten metal or metal alloy, e.g. hot-dip galvanizing, tinning, hot-coated with lead, and aluminum coating
Electroplating (cathodic deposition of a coating metal on the product to be coated, by electrolysis of a suitable solution of metallic salts), e.g., with zinc, cadmium, tin, lead, chromium, chromium/chromate, copper, nickel, gold or silver;
***
The EN to 83.11 provides, in pertinent part:
This heading covers wire, rods, tubes, plates, electrodes and similar products, of base metal or of metal carbides, of a kind used for soldering, brazing, welding or deposition of metal or of metal carbides, provided they are coated or cored with flux material; in the latter case, the outer part is usually composed of a tube or sometimes of a spirally wrapped strip. Wire, rods, tubes, plates, electrodes, etc., of base metal not coated or cored with flux material are excluded (Chapters 72 to 76 and 78 to 81). [Emphasis in original]
The materials used for coating or coring are the flux (e.g. zinc chloride, ammonium chloride, borax, quartz, resin or lanolin) which would otherwise have to be added separately during the soldering, brazing, welding or deposition process.
Fluxes, if imported alone, and not as a coating on a base metal article, are classified in heading 38.10. The EN (2) to 38.10 states, in relevant part:
(2) Fluxes and other auxiliary preparations for soldering, brazing or welding. Fluxes are used to facilitate the joining of the metals in the process of soldering, brazing or welding, by protecting the metal surfaces to be joined and the solder itself from oxidation. They have the property of dissolving the oxide which forms during the operation. Zinc chloride, ammonium chloride, sodium tetraborate, rosin and lanolin are the products most commonly used in these preparations.
The subject merchandise is an aluminum alloy sheet with a surface coating. Thus, classification in chapter 76, which provides for aluminum and articles thereof, having an allowable surface treatment must be considered. Dana argues that heading 8311, HTSUS, which provides for plates of base metals, coated with flux material, of a kind used for brazing, more specifically describes the subject merchandise and thus, must be considered for classification. The general rule of Customs jurisprudence is that, “in the absence of legislative intent to the contrary, a product described by both a use provision and an eo nomine provision is generally more specifically provided for under the use provision.” United States v. Orlando, 140 F.3d 1437, 1441 (1998) (quoting United States v. Siemens Am., Inc., 68 C.C.P.A. 62, 653 F.2d 471, 477 (1981).
Thus, even though the instant merchandise is a clad aluminum alloy that has undergone a surface treatment listed in the General EN to Chapter 72, (C)(2)(v), CBP’s analysis begins with what “flux materials” are for tariff classification purposes, and whether or not the subject merchandise is coated with flux materials, such that it is specifically described by heading 8311, HTSUS.
Brazing is a metal-joining process, similar to soldering or welding but which requires a higher temperature. The filler metal is brought slightly above its melting temperature, but below the melting point of the parent metals being joined. Upon heating, the molten filler metal flows into the gap between the other two metal pieces (known as wetting) via capillary action and as the pieces cool they form a strong metallurgical bond. This process must be done in an exceptionally clean and suitable atmosphere because if oxides and carbon residue are present in the joint, it will weaken the brazed materials. A major drawback of this process, however, is the requirement of flux materials which ensures an oxide-free atmosphere. In metallurgy, fluxes are the agents that remove oxides and carbon residues at the point of wetting. Flux can be in, among other forms, powder, wire, strip, slurry, liquid, or paste form, and they are often combined with the filler metal, so that upon wetting, it “form[s] a thermal blanket around the joint that helps spread the heat evenly during the heating cycle,” Id at 117, and cleans the joint before the filler metal melts and displaces the flux. Id at 118.
Fluxes vary greatly in composition depending on the parent materials being used, the brazing atmosphere being deployed, and the desired properties of the flux; organic, inorganic, corrosive, non-corrosive, acidic at room temperature or compounds that only release acids at elevated temperatures, for example. The exemplars in the ENs to 38.10 and 83.11 evidence this variation in composition. But regardless of the structure, the desired effect is the same: disruption and removal of the oxide layer on the metal surface and the molten filler, to facilitate direct contact between the filler and the metal. Jacobson, supra, page 128 states, “There is a penalty to be paid when fluxes are used, in the residues that they leave behind. If flux residues are not removed completely, the chemical contamination can impair the product function, performance, and life.”
The earliest brazed aluminum heat exchangers utilized a chloride flux, immersed in a molten salt bath where the salt acted as a flux and as a means of raising the unit to brazing temperature. However, this technique left a hygroscopic corrosive residue on the heat exchanger and required the dangerous and expensive post-braze pickling treatment. Other standard practices require the use of chemical fluxes in conjunction with continuous, inert gas furnaces. These fluxes are applied at the time of assembly, just prior to the brazing operation. But this process also often relies on additional chemical fluxing agents, which eventually need to be cleaned or removed. As a result, what is referred to in the industry as “fluxless” brazing techniques were developed. Metallurgical fluxes are entirely consumed or transformed during the brazing process, leaving no residue to remove. Accordingly, although they are technically self-fluxing, they are often termed “fluxless” and “flux-free” to consumers, in order to emphasize that the product does not need additional flux during the brazing process, nor does it require extensive clean-up after cooling.
Put simply, “fluxing materials” hinder oxidation during heating, and disrupt, displace, or absorb the surface oxide layers at the point of brazing to permit the underlying molten filler metal to be exposed and to contact and wet the touching substrates, while increasing the filler metal fluidity and creating a metallurgical bond. This is further evidenced in the tariff heading text which states that products are appropriately classified therein, if they are “of a kind used” for brazing. Heading 8311, HTSUS, can therefore be considered a use provision for tariff classification purposes.
All base metals are covered with a thin film of oxide that develops because of contact with the air. Aluminum is particularly difficult to braze because it readily oxidizes during heating, and because “the working temperature of the vast majority of filler materials exceeds 660°C, the melting point of aluminum. This fact alone is instrumental in eliminating 99% of all known brazing filler materials from consideration for the joining of aluminum and its alloys.” Aluminum alloys containing silicon, such as the instant product, are also difficult to braze because the silicon oxidizes to form silica and that requires increased compensating fluxing activity. A third complicating factor is that unlike many other metal systems, aluminum must be brazed at temperatures that are too low to maintain a reducing atmosphere in a furnace. Despite these challenges, aluminum is still desirable for the production of heat exchangers because it is corrosive resistant, has a high thermal conductivity, is lightweight and readily available in the market. Dana thus created its proprietary manufacturing process to metallurgically bond the nickel alloy brazing material to the aluminum substrate to combat the challenges aluminum can present in the brazing process.
The EN (2) to heading 38.10, HTSUS, defines fluxes and other auxiliary preparations for soldering, brazing or welding which are classified in that heading. The EN to 83.11 also provides a non-exhaustive list of common chemical cleaning agents. Of importance here, nickel is not, on its own, a flux material. Nickel, imported alone, would not be classified in heading 3810, HTSUS. However, without the nickel alloy treatment, electroplated via the proprietary bath formulation and preconditioning method, the aluminum alloy sheets would not braze. Conversely, a conventional electroplated nickel coating on an aluminum sheet will not work as a fluxing agent for brazing because it will have the wrong composition to do so. But within this nickel alloy treatment are metal wetting agents that increase the ability of the melting filler metal to wet and flow onto the contacting aluminum surface, while displacing and absorbing the oxide layers and any other surface impurities. In the end, the nickel has completely burned off and the joint is clean and residue-free. This is the fluxing agent in the brazing material which satisfies the EN to 38.10 (2). Finally, these sheets are clearly of a kind used only for brazing, as they have no practical use elsewhere. They are manufactured, advertised, sold, and actually used only for brazing. The increased price reflects this enhanced value. The subject merchandise is therefore specifically described by its use, under the heading text of 8311, HTSUS, which provides for, “plates of base metal coated with flux material, of a kind used for soldering, brazing, welding” by application of GRI 3(a).
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS and 19 U.S.C. § 1202 states the following in relevant part:
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:
They are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or
They have been transformed in the territory of Canada, Mexico and/or the United States so that –
Except as provided in subdivision (f) of this note, each of the no-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
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
With respect to General Note 12(t)/Chapter 8311 states, “A change to subheading 8311.90 from any other heading.” Based on the information provided, the raw material Dana Canada gets from its suppliers is clad aluminum alloy sheets of heading 7606, HTSUS. After it undergoes the proprietary bath formulation and preconditioning process and the nickel alloy containing braze promoting materials is electrolytically plated to the surface, it is classified as a plate of base metal coated with flux material of a kind used for brazing of heading 8311, HTSUS. The product is thus eligible for NAFTA preferential treatment because the requisite tariff shift from any other heading, provided for in General Note 12(b)(ii)(A) occurred, and because a timely claim for preferential tariff treatment under NAFTA was made.
HOLDING
By application of GRI 3(a), the subject aluminum clad brazing sheets are classified in heading 8311, HTSUS. They are specifically provided for in subheading 8311.90.00, HTSUS, which provides for, “Wire, rods, tubes, plates, electrodes and similar products of base metal or of metal carbides, coated or cored with flux material, of a kind used for soldering, brazing, welding or deposition of metal or of metal carbides; wire and rods, of agglomerated base metal powder, used for metal spraying; base metal parts thereof: Other.” The general column one rate of duty is free.
You are instructed to GRANT the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CPB Home Page online 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