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HQ 965464





August 8, 2002

CLA-2 RR:CR:GC 965464AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.90

Port Director
U.S. Customs Service
301 East Ocean Blvd.,
Long Beach, CA 90802

RE: Protest 2704-00-103331; Ceramic green tape

Dear Port Director:

This is our decision on Protest 2704-00-103331 filed by Kyocera America, Inc., against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of ceramic green tape.

FACTS:

Customs laboratory report 7-1998-50184-001, dated November 30, 1998, covering an earlier shipment of the same alumina tape, states, in pertinent part, the following:

The sample, a piece of green rubber-like sheet (17 x 17 cm and .3mm thick) described as “ceramic tape,” is composed of aluminum oxide (approximately 90 percent by weight) with a small amount of chromium oxide, titanium dioxide and silicon dioxide bonded with plastic resin (approximately 10 percent by weight).

According to information provided by the manufacturer, the sample is a raw ceramic “green” tape used in the production of ceramic packages for the encapsulation of integrated circuits.

Protestant describes the aluminum oxide used in the production of the green tape as follows: “Alumina Oxide (sic) is a component of the mined aluminum ore, called bauxite, and is most commonly formed in deeply weathered rocks. In some locations, deeply weathered volcanic rocks, usually basalt, form bauxite deposits. Kyocera Japan received the refined and processed alumina oxide powder that has been separated from other components in the bauxite from their suppliers.”

Once the specially sized green tape substrate is entered, it is manufactured into ceramic covered integrated circuit modules. The module is made by punching interconnecting vias into the green tape substrate, filling the vias with thick film paste, and patterning the interconnect lines on the tape. The operation is repeated for as many layers as the design requires. The separate layers of the module are then collated, stacked, and laminated, becoming the "green" multilayer. Once the multilayer is fired and cut to size, the top layer is completed by using resistors, and gold and silver bearing conductors.

The protest describes twelve entries from October 1999 through February 2000. The entries were liquidated between September 15, 2000 and December 15, 2000 under subheading 3824.90.90, HTSUS, the provision for “[P]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: [O]ther: [O]ther.” The protest was filed on December 14, 2000.

Protestant claims classification under subheading 6815.99.40, HTSUS, the provision for "Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: [O]ther: [O]ther.

ISSUE:

What is the classification of ceramic green tape?

LAW AND ANALYSIS:

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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System 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 HTSUS headings under consideration are as follows:

3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included:

Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included:

The ENs to Chapter 68 state, in pertinent part, the following:

This Chapter covers: . . .

(C) Certain goods made from mineral materials of Section V.

(D) Goods made from certain of the materials of Chapter 28 (e.g., the artificial abrasives).

EN 68.15, states, in pertinent part, the following:

The heading covers, inter alia: . . .

(4) Unfired bricks made of dolomite agglomerated with tar.

Bricks and other shapes (in particular magnesite or chrome-magnesite products), chemically bonded but not yet fired. These articles are fired during the first heating of the furnace in which they are installed. Similar products presented after firing are excluded (heading 69.02 or 69.03).

(6) Unfired silica or alumina vats (e.g., as used for melting glass).

According to the Customs laboratory report, the instant product is composed mainly of aluminum oxide (Al2O3) mixed with small amounts of chromium oxide (Cr2O3), titanium dioxide (TiO2) and silicon dioxide (SiO2) bonded together with a plastic resin, extruded to shape and cut to size, imported ready for firing into a ceramic article used specifically for ceramic packages for electronics. Hence, the instant product is described by the terms of heading 3824, HTSUS, as a "chemical product."

You state that the product is described by heading 6815, HTSUS, as an article of mineral substances. The ENs to Chapter 68, HTSUS, however, circumscribe the definition of "mineral substances" to those goods made of mineral materials of Section V, HTSUS, which consists of Chapters 25 through 27, HTSUS. The ENs also provide a specific exception for the artificial abrasives of Chapter 28, HTSUS. You have not claimed that the aluminum oxide in the product is an artificial abrasive. Rather, aluminum oxide is classified in heading 2818, HTSUS, because it is synthetically produced. As such, aluminum oxide is not classifiable in Section V, HTSUS, and no exception is provided for aluminum oxide of Chapter 28, HTSUS.

You argue that the examples of products included under heading 6815, HTSUS, listed in the ENs are similar to the instant merchandise in that they are unfired products. However, all of the examples consist of goods of Section V, HTSUS. For instance, dolomite and magnesite are classified in Chapter 25, HTSUS. In addition, our research shows that alumina and silica, as used in the making of vats for melting glass, are components of fireclay, also a product classified in Chapter 25, HTSUS.

Further support for this position is provided in the terms of the subheadings under heading 6815, HTSUS. For instance peat is classified in Chapter 27, HTSUS, and talc is classified in Chapter 25, HTSUS. Hence, the terms of heading 6815, HTSUS, do not describe the instant merchandise. Rather, the merchandise is classifiable in heading 3824, HTSUS, as a chemical product not elsewhere specified or included.

HOLDING:

The merchandise is classified in subheading 3824.90.90, HTSUS, as “[P]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: [O]ther: [O]ther.”

19 U.S.C. 1514(c)(2) provides, in pertinent part, that a protest shall be filed "within ninety days after but not before--(A) notice of liquidation or reliquidation, . . . ." The protest was filed on December 14, 2000, before one of the 12 entries pertaining to the subject protest was liquidated. Therefore, that entry (EE6=xxxxx542) liquidated on December 15, 2000, is denied due to the untimely filing of the protest as well as the substantive grounds explained above. With regards to the entries for which the protest is timely filed, the protest should also be denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

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