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HQ 967136




July 8, 2004

CLA-2 RR:CR:GC 967136AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.99.4000

Mr. Paul Hood
Advanced Composite Materials Corporation
1525 South Buncombe Road
Greer, SC 29651

RE: Magnesium Oxide Crystal wafers weighing less than 2.5 grams

Dear Mr. Hood:

This is in response to your letter, dated February 19, 2004, to the Director, National Commodity Specialist Division, requesting a classification ruling, under the Harmonized Tariff Schedule of the United States (HTSUS) for magnesium oxide (MgO) crystal wafers, weighing less than 2.5 grams, and not for use as optical elements.

FACTS:

The starting material for the merchandise is magnesium oxide powder, obtained synthetically from a brine consisting of highly concentrated magnesium salts extracted from sea water. The brine is reacted with lime to produce magnesium hydroxide powder, which is dehydrated and decomposed, producing the MgO powder. The merchandise is produced by electrofusing this MgO powder, allowing the molten mass to cool, separating out suitable sized ingots from the fused mass, and slicing the ingots into wafers. The wafers are sometimes polished and typically measure 10mm x 10mm x 0.5 mm or 20 mm x 20 mm x 0.5 mm. The merchandise is used in laboratory experiments for thin film coating and as substrates for thin films from which electronic actuators are made.

ISSUE:

What is the classification of MgO crystal wafers weighing less than 2.5 grams?

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:

2519 Natural magnesium carbonate (mangesite); fused magnesia; dead-burned (sintered) magnesia, whether or not containing small quantities of other oxides added before sintering; other magnesium oxide, whether or not pure:

Other:

Other

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:

Other:

Cultured crystals (other than optical elements of chapter 90), weighing not less than 2.5 g each:

3824.90.19 Other

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

Other articles:

Other:

Other

Note 1 to Chapter 25 states, in pertinent part, the following:

Except where their context or note 4 to this chapter otherwise requires, the headings of this chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading.

The legal notes to Chapter 38 state, in pertinent part, the following:

This chapter does not cover:

Separate chemically defined elements or compounds with the exception of the following: . . .

(5) Products specified in note 3(a) or 3(c) below.

3. Heading 3824 includes the following goods which are not to be classified in any other heading of the tariff schedule:

Cultured crystals (other than optical elements) weighing not less than 2.5 g each, of magnesium oxide or of the halides of the alkali or alkaline-earth metals;

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

This Chapter covers: . . .

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

In Headquarters Ruling 961975, dated June 1, 1999, we classified cultured MgO crystals weighing 2.5 grams or more in subheading 3824.90.19, HTSUS, the provision specifically for that product. However, subheading 3824.90.19, HTSUS, can not be used here because of the weight limitation contained therein. Furthermore, heading 3824, HTSUS, can not be used for this merchandise because it consists of a single chemical compound and is therefore specifically excluded without an exception in the legal notes to the chapter.

Synthetically derived single chemical compounds are usually classified in Chapter 28, HTSUS. However, magnesium oxide is specifically excluded from classification in that chapter by Note 3(a), which states, in pertinent part, "Subject to the provisions of note 1 to section VI, this chapter does not cover: Sodium chloride or magnesium oxide, whether or not pure, or other products of section V; . . . ."

Even though Chapter 25 is generally retained for the classification of natural minerals, MgO is specifically listed in heading 2519, HTSUS, and the sintered magnesia of that heading is synthetically derived. Hence, MgO of synthetic origin is classified in heading 2519. However, crystallizing and cutting the MgO into wafers produces a product far too advanced for classification in heading 2519, HTSUS, according to Note 1 of the chapter.

Thus, the crystallized MgO cut into wafers, but weighing less than 2.5 grams, is classified in heading 6815, 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" since it is a good made from a mineral of Section V but is processed beyond the point allowable for classification there.

HOLDING:

The merchandise is classified in subheading 6815.99.4000, HTSUSA (annotated), as “[A]rticles 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.”

The rate of duty is free. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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