CLA-2 RR:CR:GC 966267 DSS
Port Director
U.S. Customs and Border Protection
6601 North West 25th Street
Miami, FL 33122
RE: Protest No. 5201-02-100813; Spent Tantalum Sputter Targets; Waste and Scrap; Section XV, Note 8(a); Heading 8103
Dear Port Director:
This is in response to the request for further review of Protest 5201-02-100813, by Exotech, Inc. (protestant) filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain spent tantalum sputter targets.
FACTS:
The file reflects the following. The tantalum under protest is described as either pieces of, or whole, spent tantalum targets. The instant tantalum sputter targets are fabricated disks from which metal is evaporated to produce a coating on integrated circuits targets on a physical vapor deposition apparatus. When these fabricated disks have worn thin and have picked up too much gas to function, they must be removed (i.e., scrapped out).
Sputtering is a process used to coat extremely thin, uniform layers of materials onto various substrates. It is commonly used to coat glass with optical coatings, to coat semiconductor wafers with metal circuitry, and to place hard coatings onto tool edges to minimize wear. The sputtering target, which is composed of the material to be deposited on the substrate, is placed in a vacuum chamber within the sputtering machine. A beam of charged atoms or electrons bombards the target, knocking off atoms or molecules of the target material. These sputtered atoms or molecules are electrically attracted to the substrate, where they form a thin, even film on the substrate’s surface. Over the course of time the material on the target will be dissipated, necessitating periodic replacement.
Tantalum targets, when used in sputtering machines, are usually attached to a backing plate of another material, usually copper or another alloy. In a March 14, 2003 facsimile to the National Commodity Specialist Division, the protestant stated that the backing plates are not imported with the spent tantalum targets.
After importation, the protestant states the spent tantalum is chemically and mechanically cleaned and then chopped into pieces so that it can be used as an additive for manufacturing nickel-based alloys.
The merchandise was entered under a provision in heading 8103, HTSUS, for tantalum waste and scrap. In a memorandum of law filed in support of the protest, the protestant maintains that, as imported, the tantalum is waste and scrap as it is suitable for no other purpose than remanufacture. Alternatively, a claim is made under subheading 8543.90.10, HTSUS, that the spent tantalum targets are classified as parts of a physical vapor deposition apparatus.
The goods were entered on March 18, 2002. On the belief that the submitted sample was neither waste or scrap nor parts of a physical vapor deposition apparatus, on June 7, 2002 you liquidated the entry under a provision for other electrical machines or apparatus, having individual functions, not specified or included elsewhere, under subheading 8543.90.88, HTSUS. The protest was filed on August 29, 2002.
ISSUE:
Whether the tantalum at issue is waste and scrap of heading 8103, HTSUS or whether it is parts of a physical vapor deposition apparatus of heading 8543, HTSUS.
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs may then be applied.
The HTSUS (2002) provisions at issue are as follows:
Tantalum and articles thereof, including waste and scrap:
8103.20.00 Unwrought tantalum, including bars and rods obtained by sintering, powders
8103.30.00 Waste and scrap
* * * *
Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Parts:
Of physical vapor deposition apparatus
Other:
Other:
Other
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Initially, Section XV, Note 8(a), HTSUS, defines waste and scrap for the purpose of Section XV as, "Metal waste and scrap from the manufacture or mechanical working of metals, and metal goods definitely not usable as such because of breakage, cutting-up, wear or other reasons." Also, for purposes of Section XV (i.e., chapters 72 through 83), Section XV, Additional U.S. Note 1, HTSUS, defines the term “unwrought” as “refer[ring] to metal, whether or not refined, in the form of ingots, blocks, lumps, billets, cakes, slabs, pigs, cathodes, anodes, briquettes, cubes, sticks, grains, sponge, pellets, flattened pellets, rounds, rondelles, shot and similar manufactured primary forms, but [the term] does not cover rolled, forged, drawn or extruded products, tubular products or cast or sintered forms which have been machined or processed otherwise than by simple trimming, scalping or descaling.”
Information supplied by the protestant in its supplemental submission indicated that the material in its imported condition is not useable because of breakage or wear. Indeed, in a memorandum filed in support of the protest, the protestant argues that the spent tantalum targets are quickly removed to avoid excess wear, because the risk of contamination is high and the relative cost of targets is low compared to the end product. The protestant also argues that the instant targets are so worn, as evidenced by a groove in the spent targets that they are no longer useable as tantalum targets and cannot be repaired or recycled for use in sputtering machines. A review of the information in the file supports the protestant’s claim that the imported articles are waste and scrap tantalum. As the spent tantalum targets meet the definition for waste and scrap under Section XV, Note 8(a), consideration of the protestant’s alternative claim as parts of a physical vapor deposition apparatus is inapposite. They are specifically provided for under heading 8103, HTSUS, as waste and scrap tantalum.
Further, the information in the file indicates that the machining the tantalum targets undergo would constitute a mechanical deformation and finishing operation which would preclude their classification as unwrought tantalum. We conclude that the spent tantalum sputter targets at issue are classifiable as waste and scrap tantalum under subheading 8103.30.00, HTSUS.
HOLDING:
The tantalum under protest is provided for in heading 8103, HTSUS. It is classified under subheading 8103.30.00, HTSUS, which provides for “Tantalum and articles thereof, including waste and scrap: waste and scrap.”
You are instructed to GRANT the protest.
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 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 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.cpb.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
/s/
Myles B. Harmon
Director,
Commercial Rulings Division