CLA-2 RR:CR:GC 961723 DWS
Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-97-101395; Ceramic Discs; Diaphragms for Capacitive Pressure
Sensitive Devices
Dear Port Director:
The following is our decision regarding Protest 2704-97-101395 concerning your action in classifying and assessing duty on ceramic discs under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay in responding.
In preparing this decision, consideration was given to supplemental submissions by counsel for the protestant on September 24 and October 15, 1998, and February 9, 1999.
FACTS:
The merchandise consists of ceramic discs which, as the protestant claims, will be further processed into diaphragms for capacitive pressure sensor devices after importation into the U.S. In its imported condition, each disc is composed of almost pure alumina. The protestant claims that ceramic is used for discs because that material can be made very flat and is capable of withstanding repeated deflection without incurring deformation. To produce each disc, powdered alumina is pressed into shape and fired. Afterward, it is ground and lapped to the required flatness and surface finish. The discs are produced in a variety of diameters and thicknesses; the highest quality size is 1.274 inches in diameter by 0.0145 inches in thickness.
The protestant states that a finished diaphragm acts as the mechanical component of a capacitive pressure sensor device. In application, the diaphragm
works in conjunction with the ceramic base to form a capacitor. After importation, a gold conductor is screen printed on one side of the ceramic disc forming the diaphragm. It is then glass bonded to a ceramic base having an opposing conductor. This configuration creates an air gap between the diaphragm and the base. When pressure is applied to the diaphragm on the side opposite the gold film, the diaphragm deflects and moves closer to the base. The deflection in the diaphragm causes a change in the capacitance value between the two conductors. This change in capacitance is computed into a pressure reading by electronic circuits.
The merchandise was entered on various dates in 1994 and 1995 under subheading 9026.90.20, HTSUS, as parts of electrical apparatus for measuring or checking the flow, level, pressure, or other variables of liquids or gases. The entries were liquidated on January 24, 1997, under subheading 6909.19.50, HTSUS, as other ceramic wares for laboratory, chemical, or other technical uses. The protest was timely filed on April 22, 1997.
ISSUE:
Whether the ceramic discs are classifiable under subheading 6909.11.20, HTSUS, as ceramic wares for laboratory, chemical, or other technical uses, consisting of porcelain machinery parts; under subheading 6909.19.50, HTSUS, as other ceramic wares for laboratory, chemical, or other technical uses; or under subheading 9026.90.20, HTSUS, as parts of electrical apparatus for measuring or checking the flow, level, pressure, or other variables of liquids or gases.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.
The HTSUS provisions under consideration are as follows:
6909 Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs,
Tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and
Similar articles of a kind used for the conveyance or packing of goods:
Ceramic wares for laboratory, chemical or other technical uses:
6909.11 Of porcelain or china:
6909.11.20 Machinery parts.
6909.19 Other:
6909.19.50 Other.
* * * * * * * * *
9026 Instruments and apparatus for measuring or checking the flow, level, pressure or
other variables of liquids or gases (for example, flow meters, level gauges,
manometers, heat meters), excluding instruments and apparatus of heading 9014,
9015, 9028 or 9032; parts and accessories thereof:
9026.90 Parts and accessories:
9026.90.20 Of electrical instruments and apparatus.
* * * * * * * * *
We will first discuss whether the ceramic discs constitute parts described in heading 9026, HTSUS, specifically under subheading 9026.90.20, HTSUS. In HQ 960496, dated August 13, 1997, we held that steel strip, in its condition as imported, did not possess the character of a part of storage batteries. In that ruling, we cited to HQ 081606, dated August 10, 1988, which stated that:
[c]ourt cases on the classification of steel strip imported in material lengths indicate that to be classifiable other than as a material the character and identity of individual articles must be fixed with certainty at time of importation. The merchandise must be commercially and practically dedicated to only one use, with no additional post-importation processing required except cutting to
length.
The post-importation electromechanical processing represents a significant step in the manufacture of the article and is believed critical to establishing the character of the merchandise. The processing after importation is not mere cutting to length, such as was considered by the court in [Heraeus-Amersil]. In that case, continuous lengths of metal contact tape were merely cut to length after first being welded to contact springs. The court held that the metal tape was classifiable as parts of electrical relays, rather than as a material (wire). The imported perforated strip in this case is distinguishable because it is processed beyond mere cutting to length. Therefore, the perforated strip is not classifiable as parts of batteries.
In the instant case, after importation into the U.S., the ceramic discs are screen printed on one side with a gold conductor, thereby forming the diaphragm. When pressure is applied to the diaphragm on the side opposite the gold film, the diaphragm deflects and moves closer to the ceramic base. The deflection in the diaphragm causes a change in the capacitance value between the two conductors. This change in capacitance is computed into a pressure reading by electronic circuits. In
conversations with counsel for and representatives of the protestant, it is our understanding that the gold conductor is of prime importance to the operation of the diaphragm. Therefore, it is our position that this post-importation processing represents a significant step in the manufacture of diaphragms and is critical to establishing the character of diaphragms. Consequently, we find that the ceramic discs are not identifiable as diaphragms until they are screen printed with the gold conductor, and, at the time of importation, do not possess the character of parts of capacitive pressure sensor devices classifiable under subheading 9026.90.20, HTSUS.
We will now discuss whether the ceramic discs are classifiable in the provisions of heading 6909, HTSUS, specifically as ceramic wares for laboratory, chemical, or other technical uses. As it is our understanding that the ceramic discs are not for laboratory or chemical uses, we will limit our discussion to language concerning “other technical uses.”
Chapter 69, additional U.S. note 1, HTSUS, states that:
[f]or the purposes of this chapter, a “ceramic article” is a shaped article having a glazed or unglazed body of crystalline or substantially crystalline structure, the body of which is composed essentially of inorganic nonmetallic substances and is formed and subsequently hardened by such heat treatment that the body, if reheated to pyrometric cone 020, would not become more dense, harder, or less porous, but does not include any glass articles.
Based upon a December 17, 1998, laboratory report by the Customs Office of Laboratories and Scientific Services, samples of the subject merchandise we provided to them meet the criteria for ceramic articles as provided for in chapter 69, additional U.S. note 1, HTSUS.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, 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, 35128 (August 23, 1989). In part, Explanatory Note 69.09 (pp. 1004 - 1005) states that:
[t]he heading covers in particular:
(1) *****
(2) Ceramic wares for other technical uses, such as pumps, valves; retorts, vats, chemical
baths and other static containers with single or double walls (e.g., for electroplating, acid
storage); taps for acids; coils, fractionating or distillation coils and columns, Raschig rings
for petroleum fractionating apparatus; grinding apparatus and balls, etc., for grinding mills;
thread guides for textile machinery and dies for extruding man-made textiles; plates, sticks,
tips and the like, for tools.
In HQ 956198, dated July 20, 1994, we stated the following:
[c]ustoms believes that the phrase “ceramic wares for other technical uses” covers only those
products specifically listed above in [Explanatory Note] 69.09.
However, we have held that ceramic bearings, which are not described by name in the four groups of goods listed in Explanatory Note 69.09, are described by the phrase “ceramic wares for laboratory, chemical or other technical uses.” See HQ 087329, dated September 26, 1990. Also, in describing what heading 6909, HTSUS, covers, Explanatory Note 69.09 utilizes the inclusionary term “such as” to give examples as to what is meant by the phrase “ceramic wares for other technical uses.” Therefore, Customs no longer believes that the phrase “ceramic wares for other technical uses” covers only those products specifically listed in Explanatory Note 69.09. The products so listed are mere examples of the merchandise described in heading 6909, HTSUS, as “ceramic wares for other technical uses.”
As we stated above, prior to importation, the ceramic discs are produced from almost pure alumina and are pressed into their final shape and fired. They are also ground and lapped to the required flatness and surface finish. Also, the protestant states that ceramic is used for discs because that material can be made very flat and is capable of withstanding repeated deflection without incurring deformation. Based upon the composition and processing of the discs, it is our position that they are similar in nature to the items listed in Explanatory 69.09, and are therefore considered ceramic wares for other technical uses.
As we have ascertained that the ceramic discs are goods of heading 6909, we must now determine in which of its provisions they are described. In part, chapter 69, additional U.S. note 5(a), HTSUS, states:
(1) - (4) *****
(5) For the purposes of heading 6909 through 6914:
(a) The terms “porcelain,” “china” and “chinaware” embrace ceramic ware (other than
stoneware), whether or not glazed or decorated, having a fired white body (unless
artificially colored) which will not absorb more than 0.5 percent of its weight of
water and is translucent in thicknesses of several millimeters. *****
The Customs Office of Laboratories and Scientific Services also advised us that the sample discs meet the definition of “porcelain” as stated above. Therefore, the ceramic discs satisfy the terms of subheading 6909.11, HTSUS, as ceramic wares for laboratory, chemical, or other technical uses, of porcelain or china. Your office decided that the ceramic discs are classifiable under subheading 6909.19, HTSUS, as other ceramic wares for laboratory, chemical, or other technical uses. In part, GRI 3(a) states that:
[t]he heading which provides the most specific description shall be preferred to headings providing
a more general description.
As we have stated that the ceramic discs qualify as ceramic wares for other technical uses, and because they meet the definition of porcelain, it is our position that they are classifiable under subheading 6909.11, HTSUS, as that provision is more specific than subheading 6909.19, HTSUS, the “other” provision.
Although we have stated that the ceramic discs, in their imported condition, do not themselves possess the character of parts of capacitive pressure sensor devices, we are sufficiently convinced that, based upon the conclusions of the Customs laboratory report and the protestant’s description of their processing, they are for use in machinery applications. Therefore, we find that the ceramic discs are classifiable under subheading 6909.11.20, HTSUS. We note that a finding of whether a good is classifiable as a machinery part under subheading 6909.11.20, HTSUS, should be made on a case-by-case basis based upon the description of the good.
Chapter 90, note 1(c), HTSUS, states:
1. This chapter does not cover:
(a) - (b) *****
(c) Refractory goods of heading 6903; ceramic wares for laboratory, chemical or
other technical uses, of heading 6909.
Consequently, as the ceramic discs are ceramic wares for other technical uses of heading 6909, HTSUS, even if they possessed the character of parts of goods of heading 9026, HTSUS, based upon chapter 90, note 1(c), HTSUS, they would be precluded from classification therein.
HOLDING:
The ceramic discs are classifiable under subheading 6909.11.20, HTSUS, as ceramic wares for laboratory, chemical, or other technical uses, consisting of porcelain machinery parts.
As re-classification of the merchandise as indicated above will result in a lower
rate of duty than claimed, you are instructed to allow the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, 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. 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 of Regulations and Rulings
will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division