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HQ 967686





June 28, 2006

CLA-2 RR:CTF:TCM 967686 CAM

CATEGORY: CLASSIFICATION

TARIFF NO.: 8456.99.7000

Port Director
Customs House
Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130

RE: Request for further review of protest 4101-04-100638; Sigma fxP HSE Module

Dear Port Director:

The following is our decision regarding the request for further review of protest 4101-04-100638, which concerns the classification of the Sigma fxP HSE Module (module) under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is described as a hot soft etch module used for cleaning semiconductors. In a brochure by the importer entitled, “Sigma fxP for Silicon Applications,” the importer states that the module “incorporates a platen that can be run at high temperatures. Via cleaning at temperature can tighten resistance in moisture containing dielectrics.” The importer’s website (www.avizatechnology.com) states that the module is an inductively coupled plasma (ICP) sputter for surface pre-treatment metal deposition. The website indicates that an ICP is a “classical high density plasma source for etching compound semiconductors.”

The module is a component that can be used with a larger machine also distributed by the importer called the Sigma fxP Cluster Metal System (cluster system). In fact, the subject merchandise is one of several process modules that is distributed separately for use as a part of the cluster system. According to the importer’s website, the cluster system is a single wafer cluster tool designed for high-volume physical vapor deposition.

The subject merchandise was entered on November 26, 2003 and, then, liquated on November 19, 2004 under subheading 8543.90.8880, 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, other.” The protest was timely filed on November 20, 2004, claiming classification in subheading 8514.90.8000, HTSUS, which provides for: “industrial or laboratory electric furnaces and ovens (including those functioning by induction or dielectric loss); other industrial or laboratory equipment for the heat treatment of materials by induction or dielectric loss; parts thereof: parts: other.”

ISSUE:

What is the correct tariff classification under the HTSUS for the Sigma FxP HSE Module?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 require otherwise, then CBP may apply the remaining GRIs.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and, generally, are indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8456 Machine tools for working any material by removal of material, by laser or other light or photon beam ultrasonic, electro-discharge, electro-chemical, electron-beam, ionic-beam, or plasma arc processes: Other:
Other:
Other:
8456.99.70 For stripping and cleaning semiconductor wafers

8514 Industrial or laboratory electric furnaces and ovens (including those functioning by induction or dielectric loss); other industrial or laboratory equipment for the heat treatment of materials by induction or dielectric loss; parts thereof: 8514.90 Parts:
8514.90.80 Other

8543 Electrical machines and apparatus, having individual functions, not specifically included elsewhere in this chapter; parts thereof: 8543.90 Parts:
Other:
Other:
8543.90.88 Other
8543.90.8880 Other

Initially, we note that the subject merchandise is a part. Subject to certain exceptions that are not relevant here, goods that are identifiable as parts of machines or apparatuses of Chapter 84 or 85, are classified in accordance with Section XVI, Note 2, HTSUS. Nidec Corporation v. United States, 861 F. Supp. 136 (C.I.T. 1994), aff’d, 68 F.3d 1333 (Fed. Cir. 1995). Section XVI, Note 2(a), HTSUS, provides that "[p]arts which are goods included in any of the headings of chapter 84 or 85 (other than headings) are in all cases to be classified in their respective headings." Section XVI, Note 2(b), provides that “parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate”

When considering Section XVI, Note 2(a) and Note 2(b), respectively, it is necessary to determine whether the module at issue can be classified by itself, or only as a part suitable for use solely or principally with an other machine. If the module is separately classifiable as a product of chapter 84 or 85, then Note 2(a) is applicable and the module should be classified in its respective heading, regardless of the fact that it is a part. If the module cannot be classified separately as a product of chapter 84 or 85, then Note 2(b) is applicable and the module may be classified as a part with in either heading 8514, HTSUS, or heading 8543, HTSUS, as claimed by the importer and the port, respectively.

Here, the subject merchandise is separately classifiable as a product under Chapter 84 and, specifically, in heading 8456, HTSUS, as a machine tool for working any material by removal of material, by a plasma arc process. According to Section XVI, Note 5, a machine is “any machine, machinery, plant, equipment, apparatus, or appliance, cited in the headings of chapter 84 or 85.” The ENs to heading 8456, HTSUS, provide guidance as to the particular meaning of the term “machine tools” in the heading. The ENs state that “machine tools” are machines used for “the shaping or surface working of any material.” The ENs, further, specify that a “machine tool” must: (1) work by removing material; (2) carry out operations of the kind performed by machine-tools equipped with conventional tools; and (3) use one of seven process including a plasma arc. The ENs clarify a plasma arc as being “an intense ionization of a gas by means of electric current produced by an electric current under high tension.

In regards to the module at issue, the merchandise is a machine used for surface work on semiconductors. The module works by removing material through a high temperature cleaning process. Additionally, the module carries out operations of the kind performed by machine-tools equipped with conventional etching tools. The module, also, uses a plasma arc process. Several previous CBP rulings support this conclusion and have, likewise, classified merchandise similar to this module in heading, 8456, HTSUS. See NY L80301, dated October 21, 2004; NY D81954, dated September 25, 1998; NY A83876, dated June 11, 1996. Since, the module meets the terms of heading 8456, HTSUS, Section XVI Note 2(a) is applicable. Therefore, by application of Section XVI, Note 2(a), classification as a part in heading 8514, HTSUS, or heading 8543, HTSUS, is precluded.

Though the merchandise can be classified in heading 8456, HTSUS, the importer, on protest, suggests that the subject merchandise should be classified under heading 8514, HTSUS, as a part of furnaces or ovens. Specifically, the importer suggests classification under subheading 8514.90.8000, HTSUS, because the module is “a part designed for machines that produce semiconductors by baking, or cooking, the elements.” As support for classification in heading 8514, HTSUS, the importer included literature that generally describes its products as well as information detailing the Polygon 8200. The importer, however, has not provided any explanation as to the relationship between the general information provided, the Polygon 8200, and the module at issue.

CBP Regulation, 19 C.F.R. 174.13(a)(6) provides, that a protest shall contain the nature of and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision or refusal. The scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. CBP will consider all relevant allegations that are supported by competent evidence. In action on a protest CBP lacks the legal authority to assume facts and arguments that are not presented, and therefore, not in the official record. Accordingly, CBP cannot assume evidence not in the available record concerning the classification of the subject goods.

In sum, the information available to CBP does not support classification in heading 8514, HTSUS. The module, however, is classifiable by GRI 1 in heading 8456, HTSUS, because it meets the terms of that heading. By application of Section XVI, Note 2(a) classification in heading 8543, HTSUS, is precluded in light of the merchandise being classifiable in heading 8456, HTSUS.

HOLDING:

By application of GRI 1 and Note 2(a) in Section XVI, the Sigma fxP HSE Module is classified under heading 8456, HTSUS, specifically under subheading 8456.99.7000, HTSUS, which provides for: machine tools for working any material by removal of material, by laser or other light or photon beam ultrasonic, electro-discharge, electro-chemical, electron-beam, ionic beam, or plasma arc processes: other: other: other: for stripping and cleaning semiconductor wafers.

Since reclassification of the merchandise as indicated above would result in the same rate of duty as claimed, you are instructed to allow the protest in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP 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 & Trade Facilitation Division

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