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HQ 960563




OCTOBER 28, 1997

CLA-2 RR:CR:GC 960563 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.90.95

Port Director of Customs
33 New Montgomery Street
San Francisco, CA 94105

RE: PRD 2809-96-101306; Cluster Sputter Coating Machine Imported in Multiple Shipments; Cluster Handler, PVD Platform; Unfinished Sputter Coating Machine, GRI 2(a); Parts of Sputter Coating Machine; Section XVI, Note 2; Nidec Corporation v. U.S., HQ 960562

Dear Port Director:

This is our decision on Protest 2809-96-101306, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of one shipment of parts or components for the Nordiko 9550 cluster sputter coating machine, products of the United Kingdom. The entry being protested was liquidated on September 13, 1996, and this protest timely filed on September 24, 1996.

FACTS:

The cluster sputter coating machine is a physical vapor deposition machine that deposits electric conducting metal films or layers onto the surface of aluminum, glass or silicon wafer substrates by means of an electric ion discharge in a vacuum. Processes of this type are often referred to as "sputtering."

This entry covers components described in the commercial invoice as an "automation cluster handler" and "pvd platform for high saturation magnetic layers." The components and their function are not further described. The entry covers only 1 of 10 crates of parts or components of the complete sputter coating machine representing 40 percent of the total cost or value of the complete machine.

The components in this entry were entered under a provision in heading 8543, HTSUS, as electrical machines and apparatus. The Customs Form 6445 indicates that your office considered the components to be a machine of heading 8479, HTSUS, but not one for the production of semiconductor devices or electronic integrated circuits. The entry was liquidated under a provision in heading 8479 for other machines. The protestant now maintains that the correct classification is in subheading 8479.89.85, HTSUS, as machines for the production of semiconductor devices and electronic integrated circuits. The argument is that these components are essential to the proper functioning of a sputter coating machine.

The provisions under consideration are as follows:

8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]:

Other machines and mechanical appliances:

8479.89 Other:

8479.89.85 [M]achines for...production of...semiconductor devices and electronic integrated circuits

8479.89.95 Other

8479.90 Parts:

8479.90.95 (now 90.93) Other

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [chapter 85]; parts thereof:

8543.30.00 Machines and apparatus for electroplating, electrolysis or electrophoresis

ISSUE:

Whether the cluster handler and pvd platform constitute an unfinished sputter coating machine of heading 8479; whether they constitute another machine of heading 8479; whether they are parts of machines of heading 8479.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 2(a) states, in part, that incomplete or unfinished articles shall be classified as if they were complete or finished, provided the incomplete or unfinished article has the essential character of the complete or finished article.

Initially, we agree with your office that heading 8543 does not apply, as there is no indication from the limited information available that the components under protest are electrical for purposes of that heading. It is apparent that the references in the Customs Form 6445 to "the machine" were to the sputter coater itself when, in fact, the cluster handler and pvd platform in issue appear to be parts of the sputter coater. In this regard, similar physical vapor deposition machines have been held to be classifiable in subheading 8479.89.85, HTSUS, as belonging to that class or kind of machines the principal use of which is the production of semiconductor devices and electronic integrated circuits. See HQ 960562, dated October 23, 1997.

As to whether the cluster handler and pvd platform impart the essential character to a complete sputter coater of subheading 8479.89.85, the nature of the components and their role in relation to the use of the complete or finished good are among the factors deemed relevant and which must be examined. In this case, however, the components are not described, nor is their relationship to the complete sputter coater. There is no basis, therefore, on which to make an essential character determination.

Subject to certain exceptions that do not appear relevant here, goods that are identifiable as parts of machines or
apparatus of Chapter 84 or Chapter 85 are classifiable in accordance with Section XVI, Note 2, HTSUS. Nidec Corporation v. United States, 861 F. Supp. 136, aff'd. 68 F. 3d 1333 (1995).

HOLDING:

Under the authority of GRI 1, applied at the subheading level through GRI 6, the cluster handler and pvd platform are classifiable in accordance with Section XVI, Note 2, HTSUS. The record does not establish whether either component is a good included in a heading of Chapter 84 or Chapter 85, under Note 2(a). Because the cluster handler and pvd platform are parts that appear to be suitable for use solely or principally with physical deposition machines classifiable in subheading 8479.89.85, they are classifiable in subheading 8479.90.95( now 90.93), under Note 2(b).

The cluster handler and pvd platform should be reclassified as indicated and the protest DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should 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 take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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