CLA-2 OT: RR: CTF: TCM H045160 JER
Port Director
Port of Detroit
U.S. Customs and Border Protection
Edward H. McNamara Terminal
2596 Worldgateway Place
Detroit, MI 48242
RE: Classification of Ceramic Insulators; Internal Advice
Dear Port Director:
This is in response to your memorandum, dated November 6, 2008, in which you request internal advice, in accordance with U.S. Customs and Border Protection (CBP) Regulations, Part 177 (19 C.F.R. §177). The request pertains to the classification of certain ceramic insulators imported by Hemlock Semiconductor Corporation (HSC), under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, additional consideration has been given to the supplemental submission provided by HSC on November 25, 2009.
FACTS:
The subject merchandise is described as a ceramic insulator washer, a ceramic insulator sleeve and a ceramic electrode insulator (referred to collectively as ceramic insulators). These articles are made up of ceramic material and are designed to be used to provide electrical insulation within chemical reactors for semiconductors, microprocessors and other devices. Specifically, the “insulator washer” and the “insulator sleeve” are described as a two-piece set (washer and sleeve) which acts to electrically isolate the electrode from the metal base plate and other conductive material within the reactor. The “electrode insulator” washer electrically isolates the electrode from the vessel wall of the reactor. The “insulating clips” are used to hold the heating element in place within the reactor, provide structural support to the heating element and electrically isolate the heating element from the other items in the reactor.
ISSUE:
Whether the subject ceramic insulators are classified as insulating fittings under heading 8547, HTSUS, as electrical insulators of any material under heading 8546, HTSUS, or in heading 8486, HTSUS, as parts of machines or apparatus of heading 8486.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
The 2009 HTSUS provisions under consideration are as follows:
8486 Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; machines and apparatus specified in Note 9 (C) to this chapter; parts and accessories:
8486.90 Parts and accessories
8546 Electrical insulators of any material:
8546.20.00 Of ceramics
8547 Insulating fittings for electrical machines, appliances or equipment, being fitted wholly of insulating material apart from any minor components of metal (for example, threaded sockets) incorporated during molding solely for the purposes of assembly, other than insulators of heading 8546; electrical conduit tubings and joints thereof, of base metal lined with insulating material:
8547.10 Insulating fittings of ceramic:
8547.10.80 Other
Note 2 to Section XVI, HTSUS, provides in relevant part:
2. Subject to Note 1 to this Section, Note 1 to Chapter 84 and Note 1 to Chapter 85, parts of machines (not being parts of the articles of heading 84.84, 85.44, 85.45, 85.46 or 85.47) are to be classified according to the following rules:
Parts which are goods included in any of the headings of Chapter 84 or 85 (other than headings 84.09, 84.31, 84.48, 84.66, 84.73, 84.87, 85.03, 85.22, 85.29, 85.38 and 85.48) are in all cases to be classified in their respective headings;
Note 1 to Chapter 85, HTSUS, provides, in relevant part, that:
This chapter does not cover:
* * *
(c) Machines or apparatus of heading 84.86 [.]
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The General ENs to Section XVI provide, in relevant part:
(II) PARTS
(Section Note 2)
The above rules do not apply to parts which in themselves constitute an article covered by a heading of this Section (other than headings 84.87 and 85.48); these are in all cases classified in their own appropriate heading even if especially designed to work as part of a specific machine. This applies in particular to:
* * *
(17) Insulators of any material (heading 85.46).
(18) Insulator fittings for electrical machines, etc., of heading 85.47.
The ENs to heading 8547 state that:
With the exception of insulators as such (heading 85.46) this group covers all fittings for electrical machinery, appliances or apparatus, provided:
They are wholly of insulating material, or wholly of insulating material apart from any minor components of metal incorporated during moulding solely for purposes of assembly.
and
They are designed for insulating purposes even though at the same time they have other functions.
In your request for Internal Advice, you state that there appear to be contradicting rulings regarding the classification of ceramic insulators used in electric machines. See New York Ruling Letter (NY) 813519 dated September 1, 1995, NY D88572, dated March 16, 1999 and NY K82884 dated March 1, 2004 (discussed below). However, you argue that the subject merchandise is properly classified in heading 8547, HTSUS. Counsel for the importer asserts that the subject ceramic insulators are classified in
subheading 8486.90, HTSUS, as parts of machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits and machines and apparatus specified in Note 9 (C) to Ch. 84, HTSUS.
The host machines which are used in the manufacture of semiconductor devices are prima facie classifiable in heading 8486, HTSUS. However, the question remains whether the subject parts or components thereof are subject to Note 2(a) to Section XVI, HTSUS. Note 2 to Section XVI, HTSUS, states that Note 2(a) is subject to Note 1 to Chapter 85, which excludes machines and apparatus of heading 8486, HTSUS.
Note 1 (c) to Chapter 85 refers explicitly to “machines and apparatus of heading 84.86” and does not mention parts thereof. We note that parts and accessories which are to be excluded from Note 2 to Section XVI by application of Note 1 to Chapter 84 or Note 1 to Chapter 85 have been expressly listed in the applicable note. See Note 1(b) and (c) to Chapter 84. The rules of statutory construction require courts to interpret statutes in such a way as to give effect to every term used. Moreover, where Congress uses a particular phrase in one section but omits it in another, the difference in language is presumed to be intentional.
Further, the ENs to Section XVI to Note 2 explain that, “[t]his [rule] applies in particular to:…[i]nsulators of any material (heading 85.46) and [i]nsulator fittings for electrical machines, etc., of heading 85.47.” As such, Note 2 is applicable.
In NY N014094 dated, August 6, 2007, CBP classified a “starter brush holder insulator” in heading 8547, HTSUS, which acted to insulate live metal components from dead metal components in a starter motor. See also, NY K82884 (In which CBP classified three electrical insulators made (respectively) of quartz, teflon and ceramic in heading 8547, HTSUS). Likewise, in NY N032378, dated July 29, 2008, CBP classified an insulating washer in heading 8547, as this product was used to insulate an electrical post from a steel tube housing. The subject ceramic insulators are no different as they are made of insulating material and are designed to insulate electrodes within a chemical reactor rather than fix, guide or support electric current conductors (85.46). cf. NY H80182 dated May 18, 2001, (in which CBP held that a certain insulator was designed to “hold” an electrified wire. We note here that the merchandise of NY D88572 and NY 813519, are distinct from ceramic insulators of heading 8547, HTSUS. For example, the merchandise of NY D88572 was a replacement kit consisting of a ring, an insulator, a nozzle and a dome. As a “set” the entire kit was more specifically provided for in heading 6909, HTSUS, as machinery parts of porcelain. Similarly, the merchandise of NY 813519 was a set of replacement parts, consisting of bolts, screws, ceramic insulating tubes, graphite heat shields and graphite heater elements. Because the merchandise was used as a replacement parts for a furnace, it was found that the entire kit was more specifically provided for in heading 8514, HTSUS, as parts of an electrical oven.
Although the subject ceramic insulators are principally designed to be incorporated into a machine of heading 8486, HTSUS, they are components which themselves constitute articles covered by a specific heading of Section XVI. As such, these articles are to be classified according to Note 2 (a) to Section XVI. Accordingly, we find that the subject ceramic insulators are classified in heading 8547, HTSUS.
HOLDING:
By application of GRI 1 and pursuant to Note 2 (a) to Section XVI , HTSUS, the ceramic insulator washer, the ceramic insulator sleeve and the ceramic electrode insulator are classified in heading 8547, HTSUS. These items are specifically classified under subheading 8547.10.80, HTSUS, which provides for: “Insulating fittings for electrical machines, appliances or equipment, being fitted wholly of insulating material apart from any minor components of metal (for example, threaded sockets) incorporated during molding solely for the purposes of assembly, other than insulators of heading 8546; electrical conduit tubings and joints thereof, of base metal lined with insulating material: Insulating fittings of ceramic: Other.” The column one, general rate of duty is 3% percent ad valorem.
You are to mail this decision to the internal advice inquirer no later than 60 days from the date of this letter. On that date, Regulations and Rulings of the Office of International Trade, will take steps to make the decision available to CBP personnel,
and to the public on the CBP Home Page on the World Wide Web 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