HQ 961723

February 12, 1999

CLA-2 RR:CR:GC 961723 DWS

CATEGORY: Classification

TARIFF NO.: 6909.11.20

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 \[[Heraeus-Amersil]{.underline}\]. 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]{.underline}"
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]{.underline} 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]{.underline}," "[china]{.underline}" and
"[chinaware]{.underline}" 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