CLA-2 OT:RR:CTF:TCM H200828 RES
Ralph H. Sheppard
Attorney
Meeks, Sheppard, Leo, & Pillsbury
570 Lexington Avenue, 44th Floor
New York, NY 10022
RE: Ruling Request; Classification of Glass-ceramic Rods.
Dear Mr. Sheppard:
This is in response to a ruling request submission dated July 21, 2011, on behalf of Corning Incorporated, with regard to the tariff classification of glass-ceramic slabs and rods, under the Harmonized Tariff Schedule of the United States (“HTSUS”). We are unable to respond to your ruling request on the glass-ceramic slabs in light of a pending issue on substantially identical merchandise. A response with regard to the slabs will be sent under separate cover.
FACTS:
The articles at issue here are glass-ceramic rods composed of flourophlogopite mica and borosilicate glass, of which the brand name of them is MACOR® (“Macor rods”). They are from machinable opaque glass ceramic, have the dimensions of 31 cm in length and 7.5 cm in diameter, and they can be machined into complicated shapes and precision parts with ordinary metalworking tools. The Macor rods are sold to customers who machine them into whatever shapes they desire. Examples of products made from machining the rods include insulators, medical components, hinge points, aerospace components, microwave oven parts, scientific instruments, and nozzle tips for oxyacetylene torches.
An examination of a sample provided reveals that the rod has slightly rounded edges with vertical and horizontal striations running the length of the rods and has about a two inch deep depression on one of the ends and is flat on the other. The rod is smooth to the touch.
According to the information provided, the rods go through a seven step manufacturing process. In step (1), different raw materials, which include Silicon Dioxide (SiO2), Magnesium Oxide (MgO), Aluminum Oxide (Al2O3), Potassium Oxide (K2O), Boron Trioxide (B2O3), and Fluorine (F) are mixed together in batches. In step (2), the batch in step (1) is heated at a very high temperature (above 2000 °F) to bring it to a molten vitreous state. In step (3), the molten glass is poured into molds and cast to the desired rod shapes. In step (4), the rods are removed from the casting molds (the edges of the rod are somewhat rounded at this juncture) and put into a kiln known as a Lehr where it goes through the annealing process. In step (5), the annealed rods are fired (cerammed) in a static oven and opacified. Step (6) involves quality control testing and in step (7) the shapes that are salable shapes are packed in wooden crates for shipment to customers who would machine them to create specific articles.
ISSUE:
What is the classification of glass-ceramic rods?
LAW AND ANALYSIS:
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 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 GRI 2 through 6 may be applied in order.
The following HTSUS provisions are under consideration:
7002 Glass in balls (other than microspheres of heading 7018), rods or tubes, unworked:
7020 Other articles of glass:
The Legal Notes to Chapter 70, HTSUS, provide in pertinent part the following:
Notes
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2. For the purposes of headings 7003, 7004 and 7005:
Glass is not regarded as “worked” by reason of any process it has undergone before annealing;
Cutting to shape does not affect the classification of glass in sheets;
The expression “absorbent, reflecting or non-reflecting layer” means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infrared light; or which improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass.
3. The products referred to in heading 7006 remain classified in that heading whether or not they have the character of articles.
* * * * *
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 Harmonized System 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 ENs to Chapter 70 provide in pertinent part:
* * * * *
This Chapter also covers:
* * *
Special materials known as glass ceramics, in which the glass is converted into an almost wholly crystalline material by a process of controlled crystallization. They are made by adding to the glass batch nucleating agents which are often metal oxides (such as titanium dioxide and zirconium oxide) or metals (such as copper powder). After the article has been shaped by ordinary glass-making techniques, it is maintained at a temperature such as to ensure crystallization of the glassy body around the nucleating crystals (devitrification). Glass-ceramics may be opaque or sometimes transparent. They have much better mechanical, electrical and heat-resistant properties than ordinary glass.
* * * * *
As a preliminary matter, the glass-ceramic articles at issue are classifiable under Chapter 70, HTSUS, as the ENs to Chapter 70, HTSUS, specifically state that special materials, described as glass-ceramics, are covered in Chapter 70. The glass-ceramic rods are manufactured in the processes as described in the General ENs to Chapter 70 and the articles possess characteristics of opacity and different mechanical, electrical and heat-resistant properties than ordinary glass. The competing headings at issue here are headings 7002, and 7020, HTSUS.
The ceramic-glass rods are manufactured by the casting process. In general, glass rods are classifiable under heading 7002, HTSUS, as long as such glass has not been worked. The tariff term “worked” is not explicitly defined in Chapter 70, HTSUS. “When a tariff term is not defined in either the HTSUS or its legislative history, the term’s correct meaning is presumed to be its common meaning in the absence of evidence to the contrary.” Timber Prods. Co. v. United States, 515 F.3d 1213, 1219 (Fed. Cir. 2008). In discerning this common meaning, dictionaries, encyclopedias, scientific authorities, and other reliable information sources may be consulted to construe the meaning of a statute’s words. See Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003). The Court of International Trade determined that the common meaning of “work” under the HTSUS is “to form, fashion, or shape an existing product.” Winter-Wolff, Inc. v. United States, 22 C.I.T. 70, 78-79 (1998). See also HQ W968361, dated July 14, 2008. An existing product is one that “already exists as a commercial product.” Winter-Wolff, 22 C.I.T. at 79. Thus, as a threshold, for an article to be considered “worked”, the “worked” process a glass article is subjected to would have to be performed on an existing commercial product.
In addition, Note 2(a), Chapter 70, notes in regard to headings 7003, 7004, and 7005 that any process glass has undergone before annealing is not considered “worked.” See HQ 960274, dated October 9, 1997 (stating that polishing or rounding operations listed in the heading 7006 ENs must be limited to those which occur after the annealing stage). The ENs to heading 7006 provide some examples of processes that, if applied after annealing on an existing commercial product, would be considered “worked” for classification purposes. These processes include, but are not limited to, glass that is bent, curved, worked edges (ground, polished, rounded, notched, chamfered, beveled, profiled, etc.), perforated, fluted, and surface-worked glass (sand-blasted, rendered dull by treatment with emery or acid, frosted, engraved, etc.). However, not every process that an article is subjected to and that occurs after annealing would automatically cause the article to be considered “worked.” The appearance of an article can be evidence of further working, but is not dispositive. The actual test for whether an article has been “worked” requires a factual inquiry into its manufacture and any subsequent processing prior to importation. See HQ W968361. Although Note 2(a), to Chapter 70 is not directly applicable to heading 7002, HTSUS, it is useful in providing insights into processes, which, after a glass-ceramic article is subjected to, would be considered “worked.” Id.
As described supra, the processes involved in manufacturing the Macor rods are the fundamental steps in the manufacture of the basic glass-ceramic material. There is nothing in the list of these manufacturing processes that is similar to the listed examples of “worked” in EN 70.06. Processing glass in a kiln would not be considered “worked” because such a process would be required to make the fundamental glass-ceramic substance.
An examination of the sample glass-ceramic rod provided does not reveal any mechanical polishing, edge-work, or any other type of features that occurred after ceramming—the point at which the rods become a commercial product—which would be indicative of the rods being “worked.” The slightly rounded edges of the Macor rods are formed naturally during the casting process but prior to the annealing process as is indicated by the exhibits provided that show the glass-ceramic rods to have the rounded edges when the rods are removed from the molds and at the end of the annealing process. The rounded edges are simply a result of the cooling process that occurs in the mold. In addition, superheating glass in a kiln can also naturally cause rounded edges with a polished looked, which is sometimes referred to as “fire polishing.” This is simply the natural behavior of glass when heated to high temperatures. Furthermore, some shrinkage occurs during the cooling process of the molten glass in the mold. The indentation present on one end of the rod is caused by the fact that the surface of the molten glass cools at a different rate (quicker) than the molten glass that is inside and at the bottom of the mold. Also, the opacification of the rods, which occurs after annealing and during the ceramming process, is not considered “worked” as it naturally occurs during the manufacturing process and not after the Macor rods are considered commercial products.
The step of ceramming/firing is also not considered “worked” for classification purposes, primarily because this is the step where crystallization of the glass occurs and hence, makes the actual basic glass-ceramic material. Although this step comes after annealing, it is the final step to actually manufacture the basic glass-ceramic material. The Macor rods are not subjected to any additional processes or operations after the ceramming step that forms the glass-ceramic materials.
Therefore, because the ceramic-glass rods are unworked, they are classifiable under heading 7002, HTSUS, as “[g]lass in balls (other than microspheres of heading 7018), rods or tubes, unworked.”
HOLDING:
Pursuant to GRI 1, the MACOR® glass-ceramic rods are classified under subheading 7002.20.5000, HTSUSA, as “[g]lass in balls (other than microspheres of heading 7018), rods or tubes, unworked: [r]ods: [o]ther.” The column one, rate of duty, is 6 percent ad valorem.
Sincerely,
Ieva ORourke, Chief
Tariff Classification and Marking Branch