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HQ 966466




October 24, 2003

CLA-2 RR:CR:GC 966466 DBS

CATEGORY: CLASSIFICATION

TARIFF NOS.: 8504.40.95; 8504.90.75; 8504.90.95; 8543.90.68; 8543.90.88

Port Director
U.S. Customs and Border Protection
111 West Huron St., Rm 603
Buffalo, NY 14202

RE: Protest 0901-02-100180; RF generators for plasma-based semiconductor manufacturing applications; printed circuit assemblies; parts of RF Generators and Impedance Matching Networks

Dear Port Director:

This is our decision on Protest 0901-02-100180 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of radio frequency (RF) generators and various subassemblies consisting of printed circuit boards. The merchandise was entered on various dates between May 22 and June 21, 2001, the entries were liquidated between April 5 and May 3, 2002, and the protest was timely filed on July 5, 2002.

FACTS:

The subject merchandise, imported by ENI Technology Inc. (“ENI”), consists, in part, of various models of high-, mid- and low- radio frequency (RF) Power Generators designed for use in plasma-based semiconductor manufacturing applications. The subject merchandise includes printed circuit boards containing discrete passive components and printed circuit boards containing active and passive components, which are intended for use with the RF generators and impedance matching networks. In addition, bare boards, various rectifiers, transformers and related parts were imported but are not part of the Application for Further Review.

In general, a RF generator converts electrical energy from a particular power supply into a radio frequency, amplifies it and transfers it to an ENI impedance matching network with or without an ENI V/I probe (which is an impedance analyzer). The impedance matching network is an apparatus which physically attaches to the plasma chamber to adjust the impedance of the output of the RF generator and delivers the matched output to the plasma chamber. The plasma chamber is a physical vapor deposition apparatus or sputtering machine.

You reclassified the merchandise as other parts of static converters in subheading 8504.90.75, HTSUS, and as other inductors in subheading 8504.50.80, HTSUS. However, you are now of the opinion the RF generators themselves are properly classified as other static converters in subheading 8504.40.95, HTSUS. The Protestant originally claimed the RF generators and subassemblies were classified in subheadings 8479.89.84 and 8479.90.94, HTSUS (2002), as other machines and mechanical appliances, not specified or elsewhere included and as parts, respectively. Protestant amended the protest to claim that the merchandise is classified as physical vapor deposition apparatus and as parts in subheadings 8543.89.10 and 8543.90.10, HTSUS (2002), respectively, by letter of November 8, 2002, and following an Importer’s Premises Visit conducted on September 24, 2002.

ISSUE:

Whether the instant RF generators and printed circuit boards are classified under heading 8479, HTSUS, which provides for machines and mechanical appliances, having individual functions, not specified or included elsewhere in Chapter 84, HTSUS, or in heading 8504, HTSUS, which provides, in part, for static converters; whether the printed circuit board assemblies are classified as parts, under either heading.

LAW AND ANALYSIS:

The instant merchandise was entered in the year 2001. Therefore, the governing statute is the 2001 HTSUS. Protestant’s claim that the merchandise is classified in subheadings 8543.89.10 and 8543.90.10, HTSUS, fails en toto because those provisions did not exist at the time of entry. The Protestant’s original claim on the Customs Form (CF) 19 of subheadings 8479.89.84 or 8479.90.94, HTSUS, would also fail for the same reason; however, for the purposes of this protest, we will look to the related provisions under subheading 8479.89, HTSUS, that were in effect in 2001.

Moreover, had the aforementioned subheadings existed at the time of entry, the claim fails under Customs Regulations 19 CFR §174.14, which provides, in pertinent part, as follows:

Time for filing. A protest may be amended at any time prior to the expiration of the 90-day period within which such protest may be filed. Form and number of copies of amendment. An amendment to a protest shall be filedon a Customs Form 19 or on a form of the same size, clearly labeled “Amendment to Protest” at the top of the form.

The letter of November 8, 2002, amending the protest to add the claims under heading 8543, HTSUS, was submitted subsequent to the 90-day time period to file a protest. Therefore, pursuant to Section 174.14(a) of the Customs Regulations, the amendment is untimely and cannot be considered.

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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The 2001 HTSUS provisions under consideration are as follows:

8479 Machines and mechanical appliances, having individual functions, not specified or included elsewhere this chapter; parts thereof:

Other machines and mechanical appliances:

8479.89 Other:

Other

8479.90 Parts:

8479.90.95 Other

8504 Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof:

8504.40 Static converters:

8504.40.95 Other
8504.90 Parts:
Other:
Printed circuit assemblies:
8504.90.75 Other
8504.90.95 Other

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

8543.90 Parts:
Other:
Printed circuit assemblies:

Other

Other:
8543.90.88 Other

Protestant then claims the RF generators are goods included in heading 8479, HTSUS, while Customs asserts they are included in heading 8504, HTSUS. EN 85.04 (II) provides, in pertinent part, that “the apparatus [of the heading] are used to convert electrical energy in order to adapt it for further use.” In HQ 954766, dated March 24, 1994, Customs classified a product called a “High Frequency (HF) Generator.” The HF generator was the power source for an industrial gas (CO2) laser system. It was an electrical device used to transform low frequency energy into high frequency energy, which was then directed to a lasing medium in a laser resonator. Customs determined that it satisfied the description of a static converter in heading 8504, HTSUS.

The instant RF generators convert electrical energy into radio frequencies which are delivered by another apparatus for further use to a plasma etching or chemical vapor deposition machine. Notwithstanding that these items are named “generators,” we find them to be electrical static converters. See HQ 954766.

The text of heading 8504, HTSUS, provides specifically for these apparatus. The ENs to heading 8479, HTSUS, state that the heading is restricted to those machines not more specifically covered in another chapter. As these RF generators are covered in Chapter 85, HTSUS, they cannot be classified in heading 8479, HTSUS. Accordingly, they are classified in subheading 8504.40.95, HTSUS, as other static converters. We note that the RF generators were classified in subheading 8504.90.75, HTSUS, rather than 8504.40.95, HTSUS. They should be reclassified in accordance with this decision.

We note that in HQ 953382, dated April 15, 1993, Customs classified, among other articles, a "Power Current Generator" ("PCG-1"), which provided a selectable electrical current to an oscilloscope in order to determine the injected current value. Customs rejected the contention that the generator was classified in heading 8543, HTSUS, and held the generator was classified under heading 9030, HTSUS, which provides, in part, for other instruments and apparatus for measuring or checking electrical quantities. In that ruling, we cited United States v. Corning Glass Works, 66 CCPA 25, 586 F.2d 822 (1978), for the proposition that the term "checking instruments" clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Therefore, heading 9030, HTSUS, more specifically provided for the good than heading 8543, HTSUS, since heading 8543, HTSUS, applies only when the goods are not more specifically provided for elsewhere. See also HQ 954856, dated September 10, 1993. HQ 953382 is distinguishable from the instant case because the generator classified in that ruling was covered within the scope of heading 9030, HTSUS, as a checking instrument. In the instant case, heading 9030, HTSUS, cannot be considered, as the RF delivery system performs no measuring or checking function.

We also note that NY 856902, dated October 16, 1990, classified a “solid state RF generator” in subheading 8514.40.00, HTSUS. Because this ruling is completely devoid of any facts with which to distinguish or compare the instant merchandise, it is inconclusive with respect to the classification issues raised in this protest.

Regarding the classification of the printed circuit boards with passive elements and printed circuit boards with active and passive elements, we turn to Additional U.S. Note 1 to Section XVI, HTSUS. The note provides that:

For the purposes of this section, the term “printed circuit assembly” means goods consisting of one or more printed circuits of heading 8534 with one or more active elements assembled thereon, with or without passive elements. For the purposes of this note, “active elements” means diodes, transistors and similar semiconductor devices, whether or not photosensitive, of heading 8541, and integrated circuits and microassemblies of heading 8542.

Therefore, printed circuit boards with active and passive elements are printed circuit assemblies (PCAs) under Additional U.S. Note 1 to Section XVI, HTSUS.

We understand that you have the necessary information to discern which of these components are intended for use solely or principally with the RF generators and which are intended for use solely or principally with the impedance matching networks. The following classification determinations regarding these components are set forth under this presumption.

The PCAs and printed circuit boards mounted with discrete passive elements which are parts of the RF generators are classified according to Section XVI, Note 2(b), supra. Thus, PCAs are classified in subheading 8504.90.75, HTSUS, which specifically provides for PCAs which are parts of the goods of heading 8504, HTSUS. The printed circuit boards with only passive elements are classified as other parts of static converters in subheading 8504.90.95, HTSUS.

The PCAs and printed boards mounted with discrete passive elements that are parts of the impedance matching network are similarly governed. We believe the impedance matching network, while not the subject of this ruling, is classified in heading 8543, HTSUS. EN 85.43 describes the goods of the heading, in pertinent part, as follows:

This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90.

The electrical appliances and apparatus of this heading must have individual functions. The introductory provisions of Explanatory Note to heading 84.79 concerning machines and mechanical appliances having individual functions apply, mutatis mutandis, to the appliances and apparatus of this heading.

Most of the appliances of this heading consist of an assembly of electrical goods or parts (valves, transformers, capacitors, chokes, resistors, etc.) operating wholly electrically. However, the heading also includes electrical goods incorporating mechanical features provided that such features are subsidiary to the electrical function of the machine or appliance.

As with the machines of heading 8479, HTSUS, the appliances and apparatus of heading 8543, HTSUS, are distinguished from parts of apparatus classified as parts for general use by their individual functions. See EN 84.79, supra. The impedance matching network is an electronic device that matches the impedance of the newly converted radio frequency to 50 ohms and then passes it to a plasma chamber. This function is an individual function, not provided in any other heading of the HTSUS. Accordingly, PCAs which are parts of impedance matching networks are classified in subheading 8543.90.68, HTSUS, which specifically provides for PCAs which are parts of the apparatus of heading 8543, HTSUS. The printed boards mounted with discrete passive elements which are parts of impedance matching networks are classified as other parts in subheading 8543.90.88, HTSUS.

HOLDING:

The instant RF generators are classified in subheading 8504.40.85, HTSUS, which provides for “Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: Static converters: Other.”

PCAs which are parts of the RF generators are classified in subheading 8504.90.75, HTSUS, which provides for “Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: Parts: Other: Printed circuit assemblies: Other.”

Printed boards mounted with discrete passive elements which are parts of the RF generators are classified in subheading 8504.90.95, HTSUS, which provides for “Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: Parts: Other: Other.

PCAs which are parts of impedance matching networks are classified in subheading 8543.90.68, HTSUS, which provides for Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Parts: Other: Printed circuit assemblies: Other.”

Printed boards mounted with discrete passive elements which are parts of impedance matching networks are classified in subheading 8543.90.88, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Parts: Other: Other: Other.”

You are instructed to DENY the protest with respect to the goods classified in heading 8504, HTSUS, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. You are instructed to ALLOW the protest with respect to the good classified in heading 8543, HTSUS.

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 Bureau of Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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