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HQ 967143




February 16, 2005

CLA-2 RR: CR: GC 967143 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8419.89.9585

Mr. Robert A. Callandra
Attorney at Law
4 Henning Drive
Fairfield, NJ 07004

RE: Reconsideration of NY J89918; crystal growers

Dear Mr. Callandra:

This is in response to your letter dated May 4, 2004, written on behalf of your client, Sheffield Forgemasters Inc., requesting reconsideration of New York ruling letter (NY) J89918, dated October 30, 2003, which classified a quartz crystal growing pressure vessel in subheading 8419.89.9585, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other machinery for the treatment of materials by a process involving a change of temperature. We have reviewed the ruling and arguments presented in your request. We have taken into consideration the additional information submitted on January 10 and discussed during the teleconference conducted on January 11, 2005, as well as other verbal consultations during the course of our review. We find NY J89918 to be correct and herein affirm the ruling.

FACTS:

The facts as set forth in NY J89918 are as follows:

The item in question is a quartz crystal growing pressure vessel. The pressure vessel consists of a vessel body, a top closing, and a split ring clamp to hold the closure to the vessel. Specifications for the pressure vessel include a pressure range of up to 29,000 psi and a temperature range of 70 to 750 F. The pressure vessel will be used to produce synthetic single quartz bars. The quartz bars have numerous electronic applications, including use in quartz watches (oscillators), electronic signal filters and piezoelectric transducers (ultrasonic, ultra-sound transducers). The process of growing the synthetic quartz crystal involves the application of high pressure as well as high temperature in a high-pressure chamber. You state that the purpose of the pressure vessel is to contain the high pressure and temperature.

In operation, raw quartz stones will be loaded into the bottom half of the quartz-growing vessel. Thin plate-type quartz seeds will be loaded into the top half of the vessel. The bottom half of the vessel will be kept at a higher temperature than the top half. At high temperatures and pressures (approximately 750 degrees and 29,000 psi), the quartz stones in the bottom of the vessel will dissolve in a fluid solution and then re-crystallize in the colder vessel top, forming the single crystal quartz.

The following relevant additional facts and/or clarifications were presented: The vessel is an autoclave. The heating component may be referred to as a furnace in the industry, but is not a furnace for purposes of heading 8415. The raw quartz stones are small chips of un-faced quartz called "lascas" or "nutrients." The crystals grown by the vessel are monocrystal semiconductor boules. The operation described above is called the Hydrothermic Growth System. This system differs from the Bridgman/Czochralski/Float Zone method of crystal growing, which utilizes both a melt area and growth area, and has a lowering mechanism from the melt zone that produces the crystal growth by pulling. The Hydrothermic Growth System uses lower temperature but higher pressure, and the instant vessel, as imported, does not include a lowering mechanism, filtering mechanism or other mechanisms. Such mechanisms may be added post-importation, if at all. Counsel confirmed that the melted quartz rises from the hotter temperature gradient to the cooler temperature gradient as a function of the pressure and heat in the vessel, rather than by any mechanism. Photographs submitted show a technician standing over the top of the vessel where the basket is suspended and did not appear to show any lowering or raising mechanism as part of the vessel. The growing baskets appear to be manually lowered into the vessel. You contend the vessel is classified under heading 8479, HTSUS, which provides for machines and mechanical appliances having individual functions, not specified or included elsewhere in the chapter.

ISSUE:

Whether the instant crystal growing machine is classified in heading 8419, HTSUS, as machinery, plant or laboratory equipment for the treatment of materials by a process involving a change of temperature, or in heading 8479, HTSUS, as machines having individual functions, not specified or included elsewhere in Chapter 84.

LAW AND ANALYSIS:

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. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8419 Machinery, plant or laboratory equipment, whether or not electrically heated (excluding furnaces, ovens and other equipment of heading 8514), for the treatment of materials by a process involving a change in temperature such as heatingother than machinery or plant of a kind used for domestic purposes;; parts thereof:

Other machinery, plant or equipment:

8419.89 Other:
Other:
8419.89.95 Other

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

Other machines and mechanical appliances:

8479.89 Other:
Other:
8479.89.84 Machines for processing semiconductor materials;.

In support of your proposed classification, you assert that the growing vessel is covered by the statistical annotation for apparatus for growing monocrystal semiconductor boules, subheading 8479.89.84.72, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). As that provision arose from the Information Technology Agreement (ITA), infra, you argue that all semiconductor crystal growers be accorded the duty free treatment agreed to under the ITA.

When the ITA went into effect on July 1, 1997, pursuant to Presidential Proclamation No. 7011, the U.S. created various new provisions to implement the agreement. The amendments set forth in Presidential Proclamation No. 7011 are based on the framework established in the Declaration on Trade in Information Technology Products, which, together with its Annex, constitute the ITA. See 62 FR 35909, para. 1. The Annex is comprised of two attachments, Attachment A and Attachment B. The second section of Attachment A lists certain semiconductor manufacturing and testing equipment and parts thereof to be covered by the ITA, along with the Harmonized System (HS) headings and subheadings under which they are classified. (The HS is the international agreement on which the HTSUS is based.) See Attachment A, Section 2, Annex of the ITA. Among the provisions in that section is "apparatus for growing or pulling monocrystal semiconductor boules" which the parties agreed were classified under subheading 8479.89. Though Presidential Proclamation 7011 does not specifically provide for that amendment, this description was inserted as a statistical annotation under subheading 8479.89.84, HTSUS, which provides, in pertinent part, for machines for processing semiconductor materials.

While the instant product falls within the expression "apparatus for growing or pulling monocrystal semiconductor boules," the ITA does not govern tariff classification. As described in the preface of the HTSUSA, statistical annotations are nonlegal elements. They have no effect on the legal text or its interpretation. Under the GRIs, which are legal text, only provisions at the same level are comparable. See GRIs 1 and 6. Notwithstanding the status of a statistical annotation, a good must first satisfy the 4-digit heading text, and then all of the relevant subheadings hierarchically above the annotation. Therefore, the existence of the aforementioned annotation has no bearing on the classification of the subject crystal-growing vessel.

Applying GRI 1, we turn now to the heading text and relevant legal notes. Heading 8419, HTSUS, is governed in part by Note 2 to Chapter 84, which provides as follows:

Subject to the operation of note 3 to section XVI, a machine or appliance which answers to a description in one or more of the headings 8401 to 8424 and at the same time to a description in one or more of the headings 8425 to 8480 is to be classified under the appropriate heading of the former group and not the latter.

Heading 8419 does not, however, cover:

(e) Machinery or plant, designed for mechanical operation, in which a change of temperature, even if necessary, is subsidiary.

The ENs to heading 8419 provides, in pertinent part, as follows:

With [previously enumerated] exceptions, the heading covers machinery and plant designed to submit materials (solid, liquid or gaseous) to a heating or cooling process in order to cause a simple change of temperature, or to cause a transformation of the materials resulting principally from the temperature change (e.g., heatingvaporising, condensing or cooling processes). But the heading excludes machinery and plant in which the heating or cooling, even if essential, is merely a secondary function designed to facilitate the main mechanical function of the machine or plant.

EN 84.19 (I), which describes "Heating or Cooling Plant and Machinery", states, in relevant part, that equipment that "causes a simple treatment of materials by heating," etc., includes "vessels, whether of the single or double-walled type, [which] are frequently constructed for working under high pressure (e.g., autoclaves)." But EN 84.19 (I)(A), which describes "Vessels, vats, etc. of various kinds for heating or cooling" denotes the following exclusion:

Vessels fitted with mechanical devices but not incorporating means of direct or indirect heating fall in heading 84.79 unless clearly designed as machinery of a type specified in another heading.

The ENs for 84.19 also provide exemplars of various vats, vessels and autoclaves, among other equipment. The ENs collectively indicate that autoclaves which do not contain mechanical devices are included in the heading. Though no exemplar describes crystal growers per se, it is an autoclave (a high pressure vessel). The instant good fits that description.

You contend that the change in temperature is a subsidiary function, and thus the vessel is excluded from classification in heading 8419, HTSUS, according to Chapter 84 Note 2(e) and the ENs above. Further, you rely on NY 833159, dated December 28, 1988, which classified a crystal growing machine that operated by the Bridgman/Czochralski/Float Zone method in heading 8479, HTSUS. You argue that the heat function is subsidiary because NY 833159 stated that growing crystals was the principal function of the machine, and that the same is true here.

Note 2(e) to Chapter 84 covers machines of heading 8419 that are designed for mechanical operation. The ENs exclude those machines where heat is "merely a secondary function designed to facilitate the main mechanical function." Emphasis added. For example, Headquarters Ruling Letter (HQ) 961365, dated June 24, 1998, applied Note 2(e) to an apparatus used in making latex that was a reactor pressure vessel and agitator/mixer combined to form a single unit. In the vessel, chemicals were mixed into rubber latex creating an exothermic reaction that released heat, and circulating water in the vessel walls dissipated the heat before the rubber was compromised. Both constituted relevant changes in temperature for purposes of heading 8419, HTSUS, but the mixing imparted the mechanical function necessary for Note 2(e) to apply. CBP then determined there was no evidence to indicate that the latter change in temperature was subsidiary to the mixing. Thus, it was not excluded from heading 8419, HTSUS.

Unlike the apparatus classified in HQ 961365, this vessel has no mechanical operation. Heat and pressure are applied to liquefy quartz pieces in a basket which then rises to a cooler temperature gradient for re-crystallization. There is no lowering mechanism or other means of "pulling" the crystals, nor are there any other mechanisms in the autoclave that would perform a mechanical operation, either primary or secondary. As such, Note 2(e) does not apply. See HQ 950571, February 12, 1992 (stating Note 2(e) did not apply to a thermal breakout machine that performed no mechanical function).

NY 833159 is equally inapplicable. It is factually distinct from the instant pressure vessel because it covers a different type of crystal grower that included a RF induction furnace and Bridgman lowering mechanism, a requisite of the Bridgman/Czochralski/Float Zone method by which it operated. As such, it had a mechanical function, which may not have been provided for elsewhere in the chapter. Here there is none. Moreover, the ruling is legally distinct because heading 8514, HTSUS, which covers furnaces, was the competing provision under consideration, not heading 8419, HTSUS. The ruling's reference to the machine's principal function could not have involved Note 2(e) because heading 8419 was not at issue. More likely, Note 3 to Section XVI, which governs classification of composite machines by their principal function, was at issue. However, as the ruling is devoid of any legal citations, we cannot discern what legal principles were in fact applied. Accordingly, this ruling has no binding effect on the instant matter.

We find that the instant vessel is covered by the terms of heading 8419, HTSUS, because it is machinery, plant or laboratory equipment for the treatment of materials -- un-faced quartz -- by a process involving a change in temperature, as high heat and high pressure dissolve the quartz, and then lower heat re-crystallizes it. Vessels, vats and autoclaves that use heat and pressure are included as exemplars in the EN 84.19. The vessel is not fitted with mechanical devices that would require consideration of any other heading. As the good falls wholly within heading 8419, HTSUS, heading 8479, HTSUS, which requires a good not be included elsewhere in the chapter, is ineligible.

For the sake of argument, even if the vessel were also classifiable in heading 8479, HTSUS, Chapter 84, Note 2 requires that heading 8419, HTSUS, prevail. See Fujitsu America, Inc., vs. United States, 342 F. Supp. 2d 1326 (Ct. Intl. Trade 2004) (holding that a coolant distribution unit that was classifiable in headings 8471 and 8419 was properly classified in heading 8419 via Note 2, Chapter 84); see also HQ 961365 (holding that although the reactor vessel/mixer machine was also prima facie classifiable in heading 8479, heading 8419, HTSUS, prevailed according the first part of Chapter 84, Note 2).

HOLDING:

The crystal growing pressure vessel is classified in subheading 8419.89.9585, HTSUSA, which provides for, "Machinery, plant or laboratory equipment, whether or not electrically heated (excluding furnaces, ovens and other equipment of heading 8514), for the treatment of materials by a process involving a change in temperature such as heatingother than machinery or plant of a kind used for domestic purposes; instantaneous or storage water heaters, nonelectric; parts thereof: Other machinery, plant or laboratory equipment: Other: Other: Other: Other: for other materials."

EFFECT ON OTHER RULINGS:

NY J89918, dated October 30, 2003, is hereby AFFIRMED.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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