CLA-2- OT:RR:CTF:TCM H085978 TNA
Port Director, Anchorage Service Port
U.S. Customs and Border Protection
605 W. 4th Ave., Suite 230 Anchorage, AK 99501
Attn: Karen Beaudin, Import Specialist
Re: Application for Further Review of Protest No. 3195-09-100342; Classification of a diamond dresser conditioning disk
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3195-09-100342, timely filed on September 9, 2009, on behalf of Micron Technology, Inc. (“Micron”). The AFR concerns the classification of a diamond dresser conditioning disk under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of a diamond dresser conditioning disk used in the chemical mechanical planarization (“CMP”) process. CMP, also called chemical mechanical polishing, is a process used in semiconductor chip fabrication. Most semiconductor chips are manufactured from silicon wafers and can undergo more than 300 steps during the fabrication process. In each step, either new material is added, or excess material is removed, and frequent cleaning of the wafers is necessary to remove any foreign particles that fall on the chip.
CMP is a process of removing that excess material through chemical etching and mechanical abrasion. CMP also makes rough surfaces smooth. During the process, the wafer is rubbed against a soft pad while slurry, a thick suspension of solids in a liquid, flows in between the wafer and the pad. The slurry contains both abrasive particles and chemicals such as an acid or a base, hydrogen peroxide, amino acids, etc.
The subject diamond dresser conditioning disk is approximately 10 ½ inches in diameter and is constructed of a rigid stainless steel metal substrate with agglomerated abrasive grit made of natural diamonds along its outer edge. The disk does not have cutting teeth or flutes, but it does have slots that allow the fluids that are used during CMP to pass through the disk. It is a consumable product that is used to condition the CMP pad during the polishing process to maintain a consistent polishing rate. It degrades over time because the diamond grit loses its aggressiveness; as a result, the disks are replaced frequently. The subject merchandise cannot perform its intended function without the applied diamond grit.
The subject merchandise entered the Port of Anchorage between February 21, 2008 and December 10, 2008 under subheading 6804.21.00, HTSUS, as “Millstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials: Millstones and grindstones for milling, grinding or pulping.” It was liquidated between April 10, 2009 and April 17, 2009, in subheading 8207.90.75, HTSUS, as “Interchangeable tools for handtools, whether or not poweroperated, or for machine-tools (for example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching, milling, turning or screwdriving), including dies for drawing or extruding metal, and rock drilling or earth boring tools; base metal parts thereof: Other interchangeable tools, and parts thereof: Other: Other.” This protest was timely filed on September 9, 2009, claiming classification as entered.
ISSUE:
Whether a diamond dresser conditioning disk is classified in heading 6804, HTSUS, as “millstones and grindstones for milling, grinding or pulping,” or under heading 8207, HTSUS, as “Other interchangeable tools, and parts thereof”?
LAW AND ANALYSIS:
This protest is properly filed under 19 U.S.C. §1514(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, as per 19 U.S.C. §1574 (c)(3).
Further Review of Protest No. 3195-09-100342 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of CBP’s Commissioner or his designee, or with a decision made at any port with respect to the same or similar merchandise. Specifically, Protestant argues that the subject merchandise should have been liquidated in accordance with New York Ruling (“NY”) A86107, dated September 25, 1996, which classified an agglomerated abrasive metal disc blade in subheading 6804.21.00, HTSUS.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are the following:
6804 Millstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials:
6804.21.00 Millstones and grindstones for milling, grinding or pulping
8207 Interchangeable tools for handtools, whether or not poweroperated, or for machine-tools (for example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching, milling, turning or screwdriving), including dies for drawing or extruding metal, and rock drilling or earth boring tools; base metal parts thereof:
8207.90 Other interchangeable tools, and parts thereof:
Other:
8207.90.75 Other:
Legal Note 1 to Chapter 68, HTSUS, provides, in pertinent part, the following:
This chapter does not cover:…
(e) Tools or parts of tools, of chapter 82
Legal Note 1 to Chapter 82, HTSUS, provides, in pertinent part, the following:
Apart from blow torches and similar self-contained torches, portable forges, grinding wheels with frameworks, manicure or pedicure sets, and goods of heading 8209, this chapter covers only articles with a blade, working edge, working surface or other working part of:…
(c) Precious or semiprecious stones (natural, synthetic or reconstructed) on a support of base metal, metal carbide or cermet; or
(d) Abrasive materials on a support of base metal, provided that the articles have cutting teeth, flutes, grooves or the like, of base metal, which retain their identity and function after the application of the abrasive.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 6804, HTSUS, states, in pertinent part, the following:
This heading covers, in particular:
(1) Millstones and grindstones, often of considerable size, for crushing, grinding, pulping, etc., (e.g., for milling grain (upper or lower stones); pulping wood, asbestos, etc.; paper-makers’ or paint mixers’ grindstones).
(2) Grindstones for sharpening cutlery, tools, etc., and designed for mounting on hand, pedal or power operated machines.
The grindstones and millstones described in the two categories above are usually flat, cylindrical or in the shape of truncated cones.
It should, however, be noted that certain abrasive tools are excluded and fall in Chapter 82. The latter Chapter, however, covers only those tools with cutting teeth, flutes, grooves, etc., which retain their identity and function even after application of the abrasive material (i.e., tools which, unlike those of this heading, could be put to use even if the abrasive had not been applied). Saws with cutting teeth covered with abrasive therefore remain in heading 82.02. Similarly crown drills as used for cutting discs from sheets of glass, quartz, etc., are classified in this heading if the working edge is smooth apart from the abrasive coating, but in heading 82.07 if toothed (whether or not coated with abrasive)…
Grinding stones, grinding wheels, etc., must be made essentially of natural stone, agglomerated or not, (e.g., sandstone, granite, lava, flint, molasse, dolomite, quartz, trachyte), of agglomerated natural or artificial abrasives (e.g., emery, pumice, tripoli, kieselguhr, crushed glass, corundum, silicon carbide, garnet, diamond, boron carbide) or of ceramics (of fired or refractory earths, or of porcelain)…
Grinding stones of this heading, and especially those for granary use or for pulping, sometimes have a ribbed surface. They may be in one piece or made up of assembled segments, be fitted with sockets, internal or external hoops, balancing weights or cavities; they may also be fitted with axles or spindles, but they must be without frameworks. Grinding stones with frameworks are classified in heading 82.05 if hand or pedal operated or in Chapter 84 or 85 if power operated.
The EN for heading 8207, HTSUS, states, in pertinent part, the following:
Whereas (apart from a few exceptions such as machine saw blades) the preceding headings of this Chapter apply in the main to hand tools ready for use as they stand or after affixing handles, this heading covers an important group of tools which are unsuitable for use independently, but are designed to be fitted, as the case may be, into:
(A) hand tools, whether or not power operated (e.g., breast drills, braces and die stocks),
(B) machine tools, of headings 84.57 to 84.65, or of heading 84.79 by reason of Note 7 to Chapter 84,
(C) tools of heading 84.67,
for pressing, stamping, punching, tapping, threading, drilling, boring, reaming, broaching, milling, gear cutting, turning, cutting, morticing or drawing, etc., metals, metal carbides, wood, stone, ebonite, certain plastics or other materials, or for screwdriving…
The heading further includes tools with a base metal working part fitted or covered with abrasive materials, provided these tools have cutting teeth, flutes, grooves, etc., which retain their identity and function even after the application of the abrasive, i.e., tools which could be put to use even if the abrasive had not been applied; most abrasive tools are, however, excluded (see the Explanatory Note to heading 68.04).
Protestant argues that the subject merchandise is described by the terms of subheading 6804.21.00, HTSUS, and should be classified there in accordance with NY A86107. We agree. As noted above, heading 6804, HTSUS, covers millstones, grindstones, grinding wheels and the like, made of agglomerated natural or artificial abrasives. The merchandise of this heading is used for polishing, trueing or cutting, hand sharpening or polishing stones, and is also designed for mounting on hand, pedal or power operated machines. To be classified in this heading, merchandise must be made of agglomerated natural or artificial abrasives. See EN 68.04. It is further noted that merchandise of this heading is usually flat, cylindrical or in the shape of truncated cones. See EN 68.04.
Based on the forgoing, this office is of the view that the subject merchandise is described by the terms of heading 6804, HTSUS. The subject disc contains an outer rim of agglomerated abrasives made of natural diamonds, and the merchandise as a whole is used for polishing and cleaning the wafers of semiconductor chips. Furthermore, the subject merchandise is designed to be attached to the larger machine that completes the planarization process.
Classification of the subject merchandise in heading 6804, HTSUS, is supported by NY A86107, in which an agglomerated abrasive metal disc cutting blade was classified in subheading 6804.21.00, HTSUS. The merchandise in that ruling was composed of diamond particles agglomerated in a copper alloy metal matrix. The subject merchandise, which consists of a disc of steel metal substrate with agglomerated natural diamonds, is substantially similar to the merchandise at issue in NY A86107.
The port liquidated the subject merchandise in heading 8207, HTSUS. This heading includes hand and machine tools which are unsuitable for use independently, but are designed to be fitted into hand-tools, machine tools of headings 8457, 8465, and 8479, HTSUS, as well as tools of heading 8467, HTSUS. See EN 8207. The subject merchandise is not described by these terms because it cannot be classified as a hand or machine tool of headings 8457, 8465, and 8479, HTSUS. Furthermore, whereas heading 8207, HTSUS, includes tools with a base metal working part fitted or covered with abrasive materials, tools that are classified there must have cutting teeth, flutes, grooves, etc., which retain their identity and function even after the application of the abrasive. See EN 82.07. By contrast, the subject merchandise does not have cutting teeth, flutes or grooves, and it cannot function without the application of the diamond abrasive. Lastly, most abrasive tools are excluded from heading 8207, HTSUS, and are classified in heading 6804, HTSUS. See EN 82.07.
It is noted that prior rulings have classified other parts of CMP machines, such as polishing pads, in heading 8486, HTSUS, which provides for machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules, wafers, and semiconductor devices. See, e.g., NY N084635, dated December 11, 2009 and NY N084636, dated December 16, 2009.
Legal Note 1 to Chapter 84, HTSUS, provides, in pertinent part, the following:
This chapter does not cover:
(a) Millstones, grindstones or other articles of chapter 68;
Legal Note 9 to Chapter 84, HTSUS, provides, in pertinent part, the following:
(C) Heading 8486 also includes machines and apparatus solely or principally of a kind used for:
(i) the manufacture or repair of masks and reticles;
(ii) assembling semiconductor devices or electronic integrated circuits; and
(iii) lifting, handling, loading or unloading of boules, wafers, semiconductor devices, electronic integrated circuits and flat panel displays.
(D) Subject to Note 1 to Section XVI and Note 1 to Chapter 84, machines and apparatus answering to the description in heading 8486 are to be classified in that heading and in no other heading of the tariff schedule.
Thus, Legal Note 1 to Chapter 84, HTSUS, excludes millstones and grindstones of Chapter 68, HTSUS. This precludes the subject merchandise from being classified in heading 8486, HTSUS. Furthermore, although Legal Note 9(D) to heading 8486, HTSUS, requires that machines answering to the description in heading 8486, HTSUS, are to be classified in that heading and in no other heading of the tariff schedule, it does not require the classification of parts of these machines or apparatus in this heading. As a result, Additional US Rule of Interpretation 1(c), which requires that a “parts” provision does not prevail over a specific provision for such a part, directs classification of the subject merchandise in heading 6804, HTSUS, over classification in heading 8486, HTSUS.
HOLDING:
By application of GRI 1, the diamond dresser discs are classified in heading 6804, HTSUS, specifically under subheading 6804.21.00, HTSUS, which provides for “Millstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials: Other millstones, grindstones, grinding wheels and the like: Of agglomerated synthetic or natural diamond.” As such, the duty rate is free.
You are instructed to ALLOW the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on CBP’s website, located 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