Each Kionix circuit contains a silicon sensor chip that responds to acceleration (an accelerometer) or rotation (a gyroscope), in addition to a separate silicon integrated circuit chip (an ASIC). The sensor chip is a summation of many different capacitors each consisting of many different movable silicon beams. The silicon beams move in response to simple changes in motion, causing a change in capacitance which the ASIC chip then interprets and translates into usable electrical signals from the outside world. The sensor chip is separately produced via thin film technology. Kionix ships the unpackaged fabricated sensor and circuit chips to Asia, where they are assembled on a single leadframe or single laminate, encapsulated with plastic, and shipped back for testing. The Kionix sensor and ASIC die are mounted on a single leadframe substrate or a single laminate substrate. When imported back into the U.S., the two chips are contained in an overmolded plastic package and connected by miniature wires.

Protest and Application for Further Review No 3195-10-100291

The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 3195-10-100291 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to involve matters previously ruled upon in HQ H013678, dated June 1, 2009, by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Specifically, Protestant presents two alternative classifications for the instant merchandise--heading 9027, HTSUS, and heading 9031, HTSUS-which were not considered at the time of the original ruling. Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows: Electronic integrated circuits and microassemblies; parts thereof: 8542.39.00 Other… * * * Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: 8543.89 Other: Other: Other: 8543.89.96 Other… * * * 9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter: 9031.80 Other instruments, appliances and machines: 9031.80.80 Other… * * * Note 1(m) to Section XVI provides: This section does not cover: (m) Articles of chapter 90; Note 8(b) to Chapter 85, for purposes of heading 8542, HTSUS, defines integrated circuits (HICs) as follows: (b) "Electronic integrated circuits" are: Monolithic integrated circuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor or compound semiconductor material (for example, doped silicon, gallium arsenide, silicon germanium, iridium phosphide) and are inseparably associated; Hybrid integrated circuits in which passive elements (resistors, capacitors, inductances, etc.), obtained by thin- or thick-film technology, and active elements (diodes, transistors, monolithic integrated circuits, etc.), obtained by semiconductor technology, are combined to all intents and purposes indivisibly, by interconnections of interconnecting cables, on a single insulating substrate (glass, ceramic, etc.). These circuits may also include discrete components; Multichip integrated circuits consisting of two or more interconnected monolithic integrated circuits combined to all intents and purposes indivisibly, whether or not on one or more insulating substrates, with or without leadframes, but with no other active or passive circuit elements. Note 8 further provides that “[f]or the classification of articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the tariff schedule which might cover them by reference to, in particular, their function.” In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The 2012 Explanatory Notes to heading 8542, HTSUS, provide as follows: The articles of this heading are defined in Note 8 (b) to the Chapter. Electronic integrated circuits are devices having a high passive and active element or component density, which are regarded as single units (see Explanatory Note to heading 85.34, first paragraph concerning elements or components to be regarded as “passive” or “active”). However, electronic circuits containing only passive elements are excluded from this heading. Unlike electronic integrated circuits, discrete components may have a single active electrical function (semiconductor devices defined by Note 8 (a) to Chapter 85) or a single passive electrical function (resistors, capacitors, inductances, etc.). Discrete components are indivisible and are the basic electronic construction components in a system. However, components consisting of several electric circuit elements and having multiple electrical functions, such as integrated circuits, are not considered as discrete components. Electronic integrated circuits include memories (e.g., DRAMS, SRAMs, PROMS, EPROMS, EEPROMS (or E2PROMS)), microcontrollers, control circuits, logic circuits, gate arrays, interface circuits, etc. Electronic integrated circuits include : (I) Monolithic integrated circuits. These are microcircuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor material (doped silicon, for example) and are therefore inseparably associated. Monolithic integrated circuits may be digital, linear (analogue) or digital-analogue. (II) Hybrid integrated circuits. These are microcircuits built up on an insulating substrate on which a thin or thick film circuit has been formed. This process allows certain passive elements (resistors, capacitors, inductances, etc.) to be produced at the same time. However, to become a hybrid integrated circuit of this heading, semiconductors must be incorporated and mounted on the surface, either in the form of chips, whether or not encased, or as encased semiconductors (e.g., in specially designed miniature casings). Hybrid integrated circuits may also contain separately produced passive elements which are incorporated into the basic film circuit in the same way as the semiconductors. Usually these passive elements are components such as capacitors, resistors or inductors in the form of chips. Substrates made up of several layers, generally ceramic, heat-bonded together to form a compact assembly, are to be taken to form a single substrate within the meaning of Note 8 (b) (ii) to this Chapter. The components forming a hybrid integrated circuit must be combined to all intents and purposes indivisibly, i.e., though some of the elements could theoretically be removed and replaced, this would be a long and delicate task which would be uneconomic under normal manufacturing conditions. (III) Multichip integrated circuits. These consist of two or more interconnected monolithic integrated circuits combined to all intents and purposes indivisibly, whether or not on one or more insulating substrates, with or without leadframes, but with no other active or passive circuit elements. Multichip integrated circuits generally come in the following configurations: - Two or more monolithic integrated circuits mounted side by side; - Two or more monolithic integrated circuits stacked one upon the other; - Combinations of the configurations above consisting of three or more monolithic integrated circuits. These monolithic integrated circuits are combined and interconnected into a single body and may be packaged through encapsulation or otherwise. They are combined to all intents and purposes indivisibly, i.e., though some of the elements could theoretically be removed and replaced, this would be a long and delicate task which would be uneconomic under normal manufacturing conditions. Insulating substrates of the multichip integrated circuits may incorporate electrically conductive regions. These regions may be composed of specific materials or formed in specific shapes to provide passive functions by means other than discrete circuit elements. Where conductive regions are present in the substrate, they are typically relied upon as a means by which the monolithic integrated circuits are interconnected. * * * * The classification of the instant electronic circuits was addressed in Headquarters Ruling Letter (HQ) H013678, dated June 1, 2009, in which CBP determined that the Kionix devices at issue were classified in heading 8543, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in Chapter 85. Protestant argues that this conclusion is incorrect, and that the Kionix multi-die products are classified in heading 8542, HTSUS, as hybrid integrated circuits, or alternatively, as multichip integrated circuits. HQ H013678 has been revoked by Headquarters Ruling Letter H240792, dated March 28, 2014. In HQ H240792, CBP reclassified the instant electronic circuits in heading 9031, HTSUS, as measuring or checking instruments. Notice of the revocation of HQ H013678 was published in Volume 48, No. 4 of the Customs Bulletin on January 29, 2014. The instant Kionix electronic circuits are thus classified in heading 9031, HTSUS, according to the analysis set forth in HQ H240792 and reproduced below. As noted in HQ H240792, CBP has consistently interpreted Note 8 to Chapter 85 (previously Note 5) to require that hybrid integrated circuits contain passive nondiscrete components, built up on the substrate. In HQ H013678, CBP concluded that the instant Kionix devices were not classifiable as hybrid integrated circuits of heading 8542, HTSUS, because no circuit was built up on the substrate. The Kionix electronic circuit does not contain any nondiscrete components, passive or active. The sensor chip (a passive element) is a discrete component and is not built up on the surface of the same substrate to which the ASIC chip is mounted. Protestant argues that legal note 8 and EN 85.42(II) require only that hybrid integrated circuits contain elements obtained by film technology, whether discrete or built up on the substrate. Stated conversely, Protestant does not believe that elements must be produced through film technology directly on the substrate of the hybrid integrated circuit, in the mass, before the semiconductors and discrete passive components are added to the substrate. These arguments have already been extensively addressed in prior CBP rulings, in which CBP concluded that hybrid integrated circuits must contain non-discrete passive elements produced by film technology directly on (in the mass of) the insulating substrate onto which active elements produced via semiconductor technology are incorporated. See, e.g., HQ 951926, dated September 18, 1992; HQ 962750, dated January 10, 2000; HQ 961050, dated May 1, 2000; HQ 964606, dated May 2, 2002; HQ H013678, dated June 1, 2009; NY I82633, dated June 26, 2002; NY N086783, dated January 6, 2010; and NY N216102, dated February 17, 2012. As the instant products have only discrete passive components which are not produced directly on the insulating substrate to which the semiconductor chip is added, they are not hybrid integrated circuits of heading 8542, HTSUS. Protestant further contends that HQ H013678 is inconsistent with another CBP ruling on substantially similar merchandise, HQ 963150, in which CBP classified certain acceleration sensors in heading 8542, HTSUS, as hybrid integrated circuits. Protestant claims that the instant Kionix electronic circuits are identical in function to the sensors at issue in HQ 963150, and thus the Kionix devices should also be classified in the same heading. HQ 963150, however, does not specify whether the passive elements of the integrated circuit at issue were created in the mass of the same substrate upon which the semiconductor devices and other discrete components were added, but the ruling does note that its conclusion is consistent with the interpretation of Note 8 and EN 85.42 articulated in HQ 961050 (i.e., that hybrid integrated circuits must contain non-discrete passive elements formed by film technology in the mass of the same insulating substrate upon which active elements formed by semiconductor technology are incorporated). Furthermore, we note that classification in heading 8542, HTSUS, is not based on the function of the product, but rather the method of manufacture. If a circuit is manufactured in a way that meets the requirements of the legal text and the ENs for heading 8542, HTSUS, the function of the device is considered in classification at the subheading level under heading 8542, HTSUS. In the alternative, Protestant contends that the instant products are multichip integrated circuits of heading 8542, HTSUS, because the ASCIS and the sensor chip are both monolithic integrated circuits pursuant to EN 85.42. Note 8(b) to Chapter 85 defines monolithic integrated circuits as “integrated circuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor or compound semiconductor material (for example, doped silicon, gallium arsenide, silicon germanium, iridium phosphide) and are inseparably associated.” In support of this argument, Protestant notes that the sensor chip is created in the mass of a silicon wafer via film technology identical to that used in conventional monolithic circuit manufacturing, and that the components are inseparably associated. However, a monolithic circuit must have both passive and active components. The Kionix devices contain one monolithic integrated circuit-the ASIC chip-and one passive component-the sensor chip. Thus, the instant devices are not multichip integrated circuits, because they contain only one monolithic integrated circuit. Protestant argues that the sensor chip should be considered a monolithic circuit in and of itself, because the capacitors in the sensor chip change capacitance upon movement or acceleration and thus are not fully passive elements. However, the fact that the capacitance of a capacitor can change does not transform it from a passive to an active element. Capacitors are considered passive elements, but they do not have to produce a fixed output. In any case, even if we considered the capacitors in the sensor chip to be an active element, the sensor chip still would not have both the passive and active components necessary to constitute a monolithic integrated circuit in its own right. Because the sensor chip is not a monolithic integrated circuit, the combination of the ASIC and the sensor would have only one monolithic circuit and thus cannot be considered a multichip integrated circuit. Finally, the merchandise at issue was examined by the CBP Laboratory in San Francisco, and was determined not to constitute an integrated circuit because the sensor chip was separately produced. Protestant argues, in the alternative, that if CBP does not consider the Kionix electronic circuits to be classified in heading 8542, HTSUS, as integrated circuits, that they should be classified in heading 9027, HTSUS, instruments and apparatus for physical or chemical analysis, or heading 9031, HTSUS, as measuring or checking instruments. Heading 9027, HTSUS, however, is limited to devices which, in addition to simply measuring a substance or force, interpret or analyze the measured data. See e.g., HQ 955445 dated January 19, 1994, which classified a particle spectrometer under heading 9031, HTSUS. Classification under heading 9027, HTSUS, was determined to be incorrect because the instrument measured the size, distribution and shape of the particles without performing any actual analysis of the particles. See also, HQ 967082, dated June 04, 2004, which classified two distinct types of gas detectors in heading 9027, HTSUS, and 8531, HTSUS. All models of the gas detectors contained a sensor which measured the parts per million (ppm) of a gas in a general area, and electronics that determined when that gas level went beyond a designated range. However, some models also contained additional electronics that analyzed and displayed the gas level data. These were classified in heading 9027, HTSUS, while the gas detectors with only alarm and no display/analysis capabilities were classified in heading 8531, HTSUS. The Kionix accelerometers, like the devices discussed above, do not identify or provide a measurement of a particular property. They simply detect changes in motion via displacement of the silicon beams in the sensor chip, which causes a change in capacitance, and interpret or translate the resulting signal via the ASIC chip. In this manner, the Kionix accelerometers are similar to the MEMS accelerometers at issue in NY F82413, dated March 3, 2000, which were classified by CBP in heading 9031, HTSUS. Like the instant merchandise, the MEMS accelerometers at issue in NY F82413 measured lateral acceleration via the displacement of movable silicon elements, causing a change in electrical capacitance. The Kionix accelerometers are similarly classified in heading 9031, HTSUS, as measuring or checking instruments. Because the Kionix accelerometers are classified in Chapter 90, they are excluded from classification in heading 8543, HTSUS, pursuant to Note 1(m) to Section XVI.


The subject merchandise is the AG-4E Rotoscan sensor (“Rotoscan”). The Rotoscan functions by being installed or integrated into another machine. The Rotoscan is a safety device that detects objects in a defined area and warns a user of these objects so as to prevent injury to the user. The Rotoscan consists of three main elements: an emitter, a receiver, and a mirror. The emitter is a semi-conductor laser diode (“LED”) with a 950 millimeter wavelength. The receiver is a phototransistor. The mirror is a rotating mirror that functions via a motor. The emitter pulses infra-red light toward the mirror. The rotating mirror reflects the light in different directions, allowing the Rotoscan to detect objects in an entire plane. When this light is blocked by an object in the path of the light, the phototransistor receives some of the reflected light. The emitter and receiver then become optically coupled; when this happens, the Rotoscan's safety outputs are shut off and a warning is sent to the user of the machine that an object is in its field. The Rotoscan's manual states that: The Banner AG4 Safety Laser Scanner (the Scanner) is an optical, two-dimensional measuring Safety Laser Scanner… The Scanner calculates the precise position of an obstruction from the light travel time and the pulse's emitted angle. If the obstruction is within the user-defined Protective Field, the Scanner switches the safety outputs OFF. Only when the Protective Field is free of obstructions does the Scanner turn its safety outputs back ON, either automatically or following a manual restart (reset) signal, depending on the operating mode…. The Scanner may NOT be used with any machine that cannot be stopped immediately after a stop signal is issued, such as single-stroke (or “full-revolution”) clutched machinery, or any machine with inadequate or inconsistent machine response time and stopping performance. See http://info.bannerengineering.com/xpedio/groups/public/documents/ literature/144924.pdf The subject merchandise entered on June 10, 2009 under subheading 8541.40.80, HTSUS, which provides for “Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof: Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes: Other: Optical coupled isolators.” U.S. Customs and Border Protection (“CBP”), relying on NY D81305, dated September 10, 1998, liquidated the merchandise on July 30, 2010, in subheading 9031.49.90, HTSUS, as “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Other optical instruments and appliances: Other: Other.” The importer filed this protest and AFR on January 7, 2011, claiming classification as entered in subheading 8541.40.80, HTSUS.

Application for Further Review of Protest No 3501-11-100006

Classification of the AG4-4E Rotoscan Safety Laser Scanner

Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 3501-11-100006 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the Port's decision is alleged to be inconsistent with a ruling of CBP's Commissioner or by his designee, or with a decision made at any port with respect to the same or similar merchandise. Protestant argues that the Port's liquidation was inconsistent with HQ 088341, dated February 26, 1991, HQ 957646, dated May 15, 1995, and HQ 957510, dated March 21, 1995, NY H81365, dated June 25, 2001, NY H82842, dated July 17, 2001, and NY I87325, dated October 25, 2002. Specifically, Protestant argues that the subject Rotoscan operates as an optical coupled isolator as described and defined in these rulings. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. The HTSUS headings under consideration are the following: 8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof: 9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Note 1 to Section XVI, HTSUS, which covers heading 8541, HTSUS, provides that: This section does not cover:… (m) Articles of chapter 90 Legal Note 8 to Chapter 85, HTSUS, provides that: For the purposes of headings 8541 and 8542: (a) “Diodes, transistors and similar semiconductor devices” are semiconductor devices the operation of which depends on variations in resistivity on the application of an electric field; (b) “Electronic integrated circuits” are: Monolithic integrated circuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor or compound semiconductor material (for example, doped silicon, gallium arsenide, silicon germanium, iridium phosphide) and are inseparably associated; Hybrid integrated circuits in which passive elements (resistors, capacitors, inductances, etc.), obtained by thin- or thick-film technology, and active elements (diodes, transistors, monolithic integrated circuits, etc.), obtained by semiconductor technology, are combined to all intents and purposes indivisibly, by interconnections of interconnecting cables, on a single insulating substrate (glass, ceramic, etc.). These circuits may also include discrete components; Multichip integrated circuits consisting of two or more interconnected monolithic integrated circuits combined to all intents and purposes indivisibly, whether or not on one or more insulating substrates, with or without leadframes, but with no other active or passive circuit elements. For the classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature, except in the case of heading 8523, which might cover them by reference to, in particular, their function. Additional U.S. Note 3 to Chapter 90, HTSUS, provides that: For the purposes of this chapter, the terms “optical appliances” and “optical instruments” refer only to those appliances and instruments which incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The EN to heading 8541, HTSUS, states, in pertinent part, the following: (B) PHOTOSENSITIVE SEMICONDUCTOR DEVICES This group comprises photosensitive semiconductor devices in which the action of visible rays, infra red rays or ultra violet rays causes variations in resistivity or generates an electromotive force, by the internal photoelectric effect. Photoemissive tubes (photoemissive cells) the operation of which is based on the external photoelectric effect (photoemission), belong to heading 85.40. The main types of photosensitive semiconductor devices are : (1) Photoconductive cells (light dependent resistors), usually consisting of two electrodes between which is a semiconductor substance (cadmium sulphide, lead sulphide, etc.) whose electrical resistance varies with the intensity of illumination falling on the cell. These cells are used in flame detectors, in exposure meters for automatic cameras, for counting moving objects, for automatic precision measuring devices, in automatic door opening systems, etc. (2) Photovoltaic cells, which convert light directly into electrical energy without the need for an external source of current. Photovoltaic cells based on selenium are used mainly in luxmeters and exposure meters. Those based on silicon have a higher output and are used, in particular, in control and regulating equipment, for detecting light impulses, in communication systems using fibre optics, etc. The EN to heading 9031, HTSUS, states, in pertinent part, the following: In addition to profile projectors, this heading covers measuring or checking instruments, appliances and machines, whether or not optical…. This heading also covers optical type measuring and checking appliances and instruments… Protestant argues that the subject Rotoscan operates as an optical coupled isolator as described and defined in HQ 088341, HQ 957646, HQ 957510, NY H81365, NY H82842, NY I87325. As a result, Protestant argues for classification in heading 8541, HTSUS, as an optical coupled isolator. Protestant states that the AG4-4E is not an instrument that measures or checks in the same way as the Proximity Laser Scanner of NY D81305, the ruling on which the Port relied to liquidate the subject merchandise in heading 9031, HTSUS. Protestant further attempts to distinguish the subject Rotoscan from NY D81305 by explaining that the Rotoscan emits infra-red rays. In response, note that Note 1 to Section XVI, HTSUS, of which heading 8541, HTSUS, is a part, excludes articles of Chapter 90, HTSUS, from Section XVI, HTSUS. Thus, we begin our analysis by determining whether the subject Rotoscan is an article of Chapter 90, HTSUS. It is undisputed that the Rotoscan uses light to detect object in its field. As such, it is an optical device. Furthermore, the Rotoscan's rotating mirror performs a vital function. The mirror vastly increases the field that the Rotoscan scans in order to detect objects; without the mirror, the Rotoscan would only scan in a line, rather than scanning a plane. As a Safety Scanner functions by shutting of dangerous machinery when it gets too close to other objects, functioning without the mirror would render it almost useless. CBP has consistently classified optical merchandise where a mirror is but one component in Chapter 90, HTSUS; in these instances, as in the present case, the mirror itself has an optical function because it reflects light. See, e.g., NY 889488, dated September 15, 1993; HQ 951156, dated August 25, 1992; HQ H154040, dated June 9, 2011; HQ H044701. Thus, the Rotoscan is an optical article of Chapter 90, HTSUS. Heading 9031, HTSUS, provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter.” The terms “measuring” and “checking” of heading 9031, HTSUS, are not defined in the HTSUS or in the ENs. In United States v. Corning Glass Works, 66 CCPA 25, 27 (1978), however, the court defined the term “check” as “to inspect and ascertain the condition of, especially in order to determine that the condition is satisfactory; … investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of …; to investigate and make sure about conditions or circumstances….” See United States v. Corning Glass Works, 66 CCPA 25, 27 (1978) (“Corning Glass Works”). The court further stated that the provision for “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Id. at 27. As a result, CBP has consistently held that equipment that is principally used in the process of measuring or checking is classifiable under that provision, even if it does not actually perform the measuring or checking operation itself. See HQ 089391, dated February 6, 1992; HQ 953382, dated April 15, 1993; and HQ H009364, dated November 23, 2009. Furthermore, CBP has defined the term “measure” as “[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount …; measure the dimensions of; take the measurements of …; to compute the size of ... from dimensional measurements.” See Webster's Third New International Dictionary, 1400 (1971). See also HQ H009364, dated November 23, 2009; HQ 965639, dated September 12, 2002; HQ 954682, July 14, 1994. In the present case, the Rotoscan is a safety device that examines a specified field and shuts off a machine that could be a hazard when objects are in its field of operation. As such, it meets Corning Glass Works' definition of “checking” in that it investigates and insures the safety of the field. In addition, the Rotoscan performs many subsidiary functions that contribute to its main function of scanning the field; many of these subsidiary functions are themselves measuring or checking functions. For example, the Rotoscan's manual indicates that the Rotoscan measures speed of the machine in which it is installed, and distance to the detected object in the selected protective field. These functions are clearly within the Corning Glass Works' definition of “measuring and checking.” As such, the Rotoscan is described by the terms of heading 9031, HTSUS. The classification of the Rotoscan in heading 9031, HTSUS, is also consistent prior CBP rulings. In particular, it is consistent with NY D81305, in which CBP classified the Proximity Laser Scanner (“PLS”), a non-contact presence-sensing proximity scanner that consisted of a transmitter with a beam splitter, a receiver, and a rotating mirror. The PLS monitored its surroundings using an infrared diode laser beam to detect objects or persons entering its sensing field. A pulsed light reflected off a rotating mirror transmitted a 180 degree pattern around the PLS, creating a sensing field. The PLS used the time interval between the transmitted pulse and the reflected pulse to determine the distance between the PLS and the object. Using the time interval and the angle of the rotating mirror, the PLS also calculated the location of the object. If the object was inside the PLS' configured protection zones, outputs were generated to a warning alarm or to stop the hazardous machines' motion. Protestant argues that the subject Rotoscan is distinguishable from the PLS in that the Rotoscan does not locate the object in the field for the user or measure its distance in the field. Furthermore, Protestant argues that the Rotoscan, rather than setting off an alarm like the PLS, simply shuts its output off when an object is in the field. Protestant also notes that the Rotoscan functions by way of a laser rather than the PLS' infrared light. In response, we note that the Protestant's description of the Rotoscan often contradicts the descriptions found in the Rotoscan's user manual. For example, the Rotoscan's manual states that it may not be used with a machine that cannot be stopped immediately after the Rotoscan issues its “stop” signal. It also states that the Rotoscan cannot be used with any machine with inadequate or inconsistent machine response time and stopping performance. See http://info.bannerengineering.com/xpedio/groups/public/documents/literature/144924.pdf. From this, we deduce that the Rotoscan does not simply shut of its safety outputs; it also stops the machine into which it has been integrated so as to remove the threat of a collision. It would not be logical for the Rotoscan only to shut itself off once an endangered object enters its field; yet, Protestant's submission does not even note that the Rotoscan functions by being integrated into another machine. The Rotoscan's manual also states that the Rotoscan “calculates the precise position of an obstruction from the light travel time and the pulse's emitted angle.” Id. This directly contradicts Protestant's statement that the Rotoscan does not locate the object in the field. Taking into account the Rotoscan's specifications as laid out in its user manual, we find the Protestant's attempts to distinguish the PLS of NY D81305 unpersuasive. In attempting to distinguish the PLS, Protestant states that the Rotoscan “is used to protect people in danger zones or at points of operation on machines and to protect objects and machine parts against the dangers of collision.” The PLS is designed to accomplish the same thing, and it achieves its goal in the same manner as the Rotoscan- by way of a transmitter, receiver, and light reflecting off of a rotating mirror to determine whether objects are in its field. Furthermore, the Rotoscan, like the PLS, warns its user that a potentially dangerous object is in the field- indeed, this function is the very reason both machines exist. In addition, the Rotoscan's laser, like the PLS' infrared beam, is an optical device; thus, the fact that one has a laser and the other infrared is insufficient to remove the Rotoscan from heading 9031, HTSUS. As a result, we find that the Rotoscan, like the PLS of NY D81305, is classified in heading 9031, HTSUS. Because the subject Rotoscan is classified in Chapter 90, HTSUS, it is excluded from classification in Section XVI, HTSUS. See Note 1 to Section XVI, HTSUS. Nonetheless, we address Protestant's arguments that the Rotoscan is classified in heading 8541, HTSUS, as an optical coupled isolator. An optical coupled isolator is defined as “a very small four-terminal electronic circuit element that includes in an integral package a light emitter, a light detector, and, in some devices, solid-state electronic circuits.” See McGraw-Hill Encyclopedia of Science and Technology (5th ed.), 1555 (1987). Furthermore, in HQ 088341, HQ 957646, HQ 957510, NY H81365, NY H82842, NY I87325, CBP stated that in optical couple isolators, the light emitter and light detector are so positioned that the majority of the emission of the emitter is optically coupled to the light-sensitive area of the detector. The merchandise at issue in these rulings was classified as optical coupled isolators of subheading 8541.40.80, HTSUS, because they were simple devices that used an electronic input signal to cause an electronic output signal without any electrical connection between the input (i.e., LED) and the output (i.e., phototransistor) terminals. By contrast, the subject Rotoscan contains more than emitting and receiving devices. For example, the Rotoscan's mirror expands the area in which the device can scan for objects. Without the mirror, the Rotoscan would function more as a linear device than as a planar device. As such, the mirror performs more than a merely subsidiary function. Thus, the Rotoscan, because it also contains more than simply emitting and receiving devices, is beyond the scope of heading 8541, HTSUS. Protestant also cites the language of Note 8 to Chapter 85, HTSUS, to support classification in heading 8541, HTSUS, because Note 8 states that “headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature… which might cover them by reference to, in particular, their function.” Based on this language, Protestant argues that Note 8 operates to preclude the subject Rotoscan from being classified in any heading except heading 8541, HTSUS. In response, we note that this clause must be read in the context of the entire legal note. Note 8 to Chapter 85, HTSUS, defines the terms “diodes, transistors and similar semiconductor devices” and “electronic integrated circuits” for the purposes of headings 8541 and 8542, HTSUS. It then stated, “For the classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature, except in the case of heading 8523, which might cover them by reference to, in particular, their function” (emphasis added). Thus, the stated preference for headings 8541 and 8542, HTSUS, in Note 8 is only for merchandise that fits the note's definition of either “diodes, transistors and similar semiconductor devices” or “electronic integrated circuits.” The Rotoscan does not fit either of these definitions. As a result, it is not subject to the terms of Note 8, and is not required to be classified in heading 8541, HTSUS.


HQ H168206 March 12, 2014 CLA-2 OT:RR:CTF:TCM H168206 AMM CATEGORY: Classification TARIFF NO.: 8523.51.00 Ms. Amy Johannesen Cerny Associates, P.C., Attorneys at Law 24 Smith Street Building 2, Suite 102 Pawling, NY 12564 RE: Revocation of New York Ruling Letters N011540; NY R04440; NY R04024; NY M80734; NY L89889; NY L88309; Classification of USB Flash Drives Dear Ms. Johannesen, This is in reference to New York Ruling Letter (NY) N011540, dated June 18, 2007, issued to Kingston Technology Company, Incorporated (Kingston) regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of four USB flash drives, identified as the DataTraveler "R" for ReadyBoost, DataTraveler II with software security, DataTraveler Secure Privacy Edition, and the DataTraveler Mini USB. In that ruling, Customs and Border Protection (CBP) classified the articles under heading 8471, HTSUS, which provides for “Automatic data processing machines and units thereof”. We have reviewed this ruling and found it to be incorrect. For the reasons set forth below, we intend to revoke this ruling. Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation relating to the tariff classification of certain USB flash drives was published on December 18, 2013, in the Customs Bulletin, Volume 47, Number 50. Comments from one interested party were received on this proposal. The commenter agreed with the proposed classification of the instant USB flash drives. A discussion of the comments and CBP’s reasoning are found in the “Law and Analysis” section below. FACTS: In NY N011540, CBP described the four products at issue in the following manner: The merchandise under consideration includes four external flash memory devices: DataTraveler "R" for ReadyBoost (DTR/1GB), DataTraveler II with software security (KUSBDTII/512MB), DataTraveler Secure Privacy Edition (DTSP/512MB), and the DataTraveler Mini USB (DTMini/512MB). The KUSBDTII and DTSP are encrypted with 256-bit AES Hardware Based Encryption and password protection. * * * The USB Flash drives are storage devices that employ Single-Level Cell Not AND (NAND) Flash and a controller in a capsulated portable case. The built-in Flash memory controller manages the interface with the host computer, and reads and writes to the Flash chips on the Flash storage device. The USB Flash drives meet Note 5 (C) to Chapter 84, Harmonized Tariff Schedule of the United States (HTSUS). These storage devices connect to a computer’s central processing unit (CPU) directly through the USB port. They are able to accept or deliver data in a form which can be used by the computer system. Pictures of the products at issue are included below: Data Traveler “R” for ReadyBoost (DTR/1GB) Data Traveler II with software security (KUSBDTII/512MB) Data Traveler Secure Privacy Edition (DTSP/512MB) Data Traveler Mini USB (DTMini/512MB) has red cover In a correspondence dated January 31, 2012, Kingston confirmed that all four products at issue contained a printed circuit board within the housing. ISSUE: Whether the four USB flash drives at issue in NY N011540 are classifiable under heading 8523, HTSUS, as solid state non-volatile storage devices, and if so, whether this is the more specific provision over heading 8471, HTSUS, the provision for units of ADP machines. LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The 2013 HTSUS provisions at issue are: 8471 Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included: 8471.70 Storage units: Other storage units: 8471.70.90 Other -------------------------------------- 8523 Discs, tapes, solid-state non-volatile storage devices, “smart cards” and other media for the recording of sound or of other phenomena, whether or not recorded, including matrices and masters for the production of discs, but excluding products of Chapter 37: Semiconductor media: 8523.51.00 Solid-state non-volatile storage devices GRI 3 states, in pertinent part: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. * * * Note 5(C) to Chapter 84, HTSUS, states, in pertinent part: (C) Subject to paragraphs (D) and (E) below, a unit is to be regarded as being part of an automatic data processing system if it meets all of the following conditions: (i) It is of a kind solely or principally used in an automatic data processing system; (ii) It is connectable to the central processing unit either directly or through one or more other units; and (iii) It is able to accept or deliver data in a form (codes or signals) which can be used by the system. Separately presented units of an automatic data processing machine are to be classified in heading 8471. However, keyboards, X-Y co-ordinate input devices and disk storage units which satisfy the conditions of paragraphs (C) (ii) and (C) (iii) above, are in all cases to be classified as units of heading 8471. * * * Note 4 to Chapter 85, HTSUS, states, in pertinent part: For the purposes of heading 8523: (a) “Solid-state non-volatile storage devices” (for example, “flash memory cards” or “flash electronic storage cards”) are storage devices with a connecting socket, comprising in the same housing one or more flash memories (for example, “FLASH E²PROM”) in the form of integrated circuits mounted on a printed circuit board. They may include a controller in the form of an integrated circuit and discrete passive components, such as capacitors and resistors; * * * The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to heading 85.23 states, in pertinent part: In particular, this heading covers: * * * (C) Semiconductor Media   Products of this group contain one or more electronic integrated circuits.   Thus, this group includes:   (1) Solid-state, non-volatile data storage devices for recording data from an external source (See Note 4 (a) to this chapter).  These devices (also known as “flash memory cards” or “flash electronic storage cards”) are used for recording data from an external source, or providing data to, devices such as navigation and global positioning systems, data collection terminals, portable scanners, medical monitoring appliances, audio recording apparatus, personal communicators, mobile phones, digital cameras and automatic data processing machines.  Generally, the data are stored onto, and read from, the device once it has been connected to that particular appliance, but can also be uploaded onto or downloaded from an automatic data processing machine.         The media use only power supplied from the appliances to which they are connected, and require no battery.         These non-volatile data storage devices are comprised of, in the same housing, one or more flash memories (“FLASH E2PROM/EEPROM”) in the form of integrated circuits mounted on a printed circuit board, and incorporate a connecting socket to a host appliance.  They may include capacitors, resistors and a microcontroller in the form of an integrated circuit. Example of solid state non-volatile storage devices are USB flash drives. * * * In NY N011540, dated June 18, 2007, CBP classified four external flash memory devices, known as USB flash drives, under heading 8471, HTSUS, which provides, in pertinent part, for “Automatic data processing machines and units thereof”. CBP did not consider whether these devices were properly classified under heading 8523, HTSUS, which provides, in pertinent part, for “[S]olid state non-volatile storage devices”. To be classified under heading 8471, HSTUS, as a “unit thereof” of an automatic data processing machine, the products at issue must satisfy Note 5(C) to Chapter 84, HTSUS. According to NY N011540, the products are storage devices which connect to a computer’s central processing unit directly through a USB port. They are able to accept or deliver data in a form which can be used by the computer system. Therefore, the criteria of Note 5(C)(ii) and (iii) to Chapter 84, HTSUS, are satisfied. The products at issue employ Single-Level Cell Not AND (NAND) Flash memory, which is based on semiconductor microchip technology rather than magnetic disks. The products at issue are not “disk storage units” as described in Note 5(C) to Chapter 84, HTSUS. Therefore, the products must be “of a kind solely or principally used in an automatic data processing system” in accordance with Note 5(C)(i) to Chapter 84, HTSUS. See BenQ Am. Corp. v. United States, 646 F.3d 1371, 1379-81 (Fed. Cir. 2011). For articles governed by principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use “is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind of merchandise. See BenQ, 646 F.3d, at 1379-1380. While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the courts have provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. CBP has applied this principle in subsequent rulings. See, e.g., HQ 082780, dated December 18, 1989. This principle has been carried over to the HTSUS, as courts have determined that principal use under the HTSUS is defined as the use which “exceeds all other uses.” See Lenox Collections v. United States, 20 C.I.T. 194, 196 (Ct. Int’l. Trade, 1996). The products at issue are flash memory storage devices designed to interface with laptops, personal computers, and other electronic devices. These products provide increased reliability from their lack of moving parts, decreased power consumption and noise, and increased speed compared to traditional compact disk or floppy disk drives. Kingston’s product literature indicates that the products “incorporate NAND Flash and a controller in a capsulated case. USB Flash drives work with the vast majority of computers and devices that incorporate the Universal Serial Bus interface, including most PCs, PDAs, and MP3 players.” Kingston markets their USB Flash Drive products directly to individual consumers, enterprises, and governments. The products are designed to be inserted directly into a USB port, which is in turn connected to an automatic data processing unit. Based on the Carborundum factors and the information above, we find that the principal use of the products at issue is in an ADP machine, and that Note 5(C)(i) to Chapter 84, HTSUS, is satisfied. Because the products at issue satisfy Note 5(C) to Chapter 84, HTSUS, they are properly classified under Heading 8471, HTSUS. Specifically, the products are classified under subheading 8471.70.90, HTSUS, which provides for: “Automatic data processing machines and units thereof; …: Storage units: Other storage units: Other”. Effective February 3, 2007, Chapter 85 of the HTSUS was revised by Presidential Proclamation 8097, pursuant to Section 1206(a) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. §3005(a)). See 72 Fed. Reg. 453. The proclamation states, in pertinent part: In order to modify the HTS to conform it to the Convention or any amendment thereto recommended for adoption, to promote the uniform application of the Convention, to establish additional subordinate tariff categories, and to make technical and conforming changes to existing provisions, the HTS is modified as set forth in Annex I of Publication 3898 of the United States International Trade Commission, entitled, "Modifications to the Harmonized Tariff Schedule of the United States Under Section 1206 of the Omnibus Trade and Competitiveness Act of 1988, " which is incorporated by reference into this proclamation. See 72 Fed. Reg. 453, 456. The modifications to the HTSUS set forth in Annex I of Publication 3898 of the United States International Trade Commission (ITC) were included in the 2007 version of the HTSUS. Prior to this date, heading 8523, HTSUS (2006), provided for “Prepared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37”. After the revision, heading 8523, HTSUS (2007), provided, in pertinent part, for “solid-state non-volatile storage devices”. In addition, certain chapter notes were renumbered, and new ones were added. For instance, Note 4 to Chapter 85, HTSUS (2007), was added, providing specific definitions for the phrases “solid state non-volatile storage devices” and “smart cards”. Therefore, CBP must consider whether the products at issue in NY N011540, dated June 18, 2007, are properly classified under the revised version of heading 8523, HTSUS. To be classified as a “solid state non-volatile storage device” under heading 8523, HTSUS, the products must satisfy Note 4(a) to Chapter 85, HTSUS. This Note lists four criteria, namely: that it is a storage device; with a connecting socket; that it has flash memory in the same housing as the connecting socket; and that the flash memory be in the form of an integrated circuit mounted on a printed circuit board. There is no dispute that the instant merchandise is a storage device. NY N011540 states that “[t]hese storage devices connect to a computer’s central processing unit (CPU) directly through the USB port.” The term “flash memory” is defined as “[A] type of EEPROM that can only be erased in blocks; it cannot be erased one byte at a time. In this regard, it resembles a disk drive that is divided into sectors. Flash memory is usually used for storing large amounts of data, like a disk; …”. See Dictionary of Computer and Internet Terms, 10th Ed. (2009), at pp. 193-194. The term “EEPROM”, which stands for Electrically Erasable Programmable Read-Only Memory, is defined as a type of memory chip whose contents can both be recorded and erased by electrical signals, but do not go blank when power is removed.” See Id. at p. 162. A “chip”, or “integrated circuit”, is defined as “an electronic device consisting of many miniature transistors and other circuit elements on a single silicon chip.” See Id. at pp. 90, 254. According to NY N011540, the products at issue are storage devices which contain a flash memory and a controller in a capsulated portable case. Furthermore, the products incorporate an adapter which connects to a computer through the USB port. Kingston also admitted to CBP that the products at issue contain a printed circuit board, in correspondence dated January 31, 2012. Hence, the products at issue in NY N011540 are storage devices with a connecting socket, comprising in the same housing one or more flash memories in the form of integrated circuits mounted on a printed circuit board. See Note 4(a) to Chapter 85, HTSUS. Therefore, they are properly classified under heading 8523, HTSUS, as “solid state non-volatile storage devices”. According to GRI 1, the products at issue are properly classified under headings 8471 and 8523, HTSUS. Therefore, we must resort to GRI 3 to determine which heading is the correct one. According to GRI 3(a), “[t]he heading which provides the most specific description shall be preferred to headings providing a more general description.” The description provided by heading 8523, HTSUS, “[S]olid state non-volatile storage devices”, is more specific than the description provided by heading 8471, HTSUS, “[U]nits thereof”, because heading 8523, HTSUS, is “the provision with requirements that are more difficult to satisfy and, that describe the article with the greatest degree of accuracy and certainty.” Pomeroy Collection, Ltd. v. United States, 559 F. Supp. 2d 1374, 1393 (Ct. Int’l. Trade 2008). Therefore, by operation of GRI 3(a), the products at issue in NY N011540 are correctly classified under heading 8523, HTSUS. With regard to classification at the subheading level, CBP must consider whether the instant merchandise is “semiconductor media.” The term “media” has been previously defined by CBP as “a material that stores or transmits data.” See Headquarters Ruling Letter (HQ) H097659, dated August 31, 2010; HQ 962507, dated May 22, 2002 (citing The Computer Glossary, 6th Ed. (1993) p. 346). The products at issue in NY N011540 constitute “semiconductor media” as defined above, because they are data storage devices comprised of a flash memory, a type of integrated circuit incorporating semiconductor technology. As such, the products at issue are specifically classified under subheading 8523.51.00, HTSUS, which provides for “[S]olid state non-volatile storage devices …: Semiconductor media: solid state non-volatile storage devices”. CBP notes that one interested party submitted comments generally agreeing that the instant products are properly classified under heading 8523, HTSUS, by operation of GRI 3(a). The commenter also suggested that CBP should classify all “flash memory” devices under heading 8523, HTSUS, regardless of their form factor or input/output format. However, this heading specifically covers “solid-state non-volatile storage devices”, and the scope of this term is clearly defined in Note 4(a) to Chapter 85, HTSUS.  CBP notes that several rulings classified merchandise similar to the products at issue under heading 8471, HTSUS. See NY R04440, dated July 27, 2006; NY R04024, dated June 5, 2006; NY M80734, dated March 31, 2006; NY L89889, dated January 20, 2006; and NY L88309, dated October 28, 2005. These rulings were published before the new text of heading 8523, HTSUS, took effect on February 3, 2007. Therefore, these rulings were revoked by operation of law on that date, in accordance with Presidential Proclamation 8097. HOLDING: By application of GRI 3(a), the DataTraveler “R” for ReadyBoost (DTR/1GB), DataTraveler II with software security (KUSBDTII/512MB), DataTraveler Secure Privacy Edition (DTSP/512MB), and the DataTraveler Mini USB (DTMini/512MB) are classified under heading 8523, HTSUS, specifically under 8523.51.00, HTSUS, which provides in for “Discs, tapes, solid-state non-volatile storage devices, “smart cards” and other media for the recording of sound or of other phenomena, whether or not recorded, including matrices and masters for the production of discs, but excluding products of Chapter 37: Semiconductor media: solid state non-volatile storage devices”. The column one, general rate of duty is free. Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov. EFFECT ON OTHER RULINGS: NY N011540, dated June 18, 2007, is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Furthermore, CBP notes that NY R04440, dated July 27, 2006, NY R04024, dated June 5, 2006, NY M80734, dated March 31, 2006, NY L89889, dated January 20, 2006, and NY L88309, dated October 28, 2005, were REVOKED by operation of law on February 3, 2007, in accordance with Presidential Proclamation 8097. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division


The articles at issue in HQ H011054 are described as two models of wafer probe cards-machines used to automate the simultaneous testing of the electrical properties of multiple integrated circuits on semiconductor wafers prior to the singulation and packaging of individual IC dies. The manufacture and testing of ICs involves a series of complex operations, and for the purposes of providing a general description of this process, CBP has previously quoted a summary of “Probe Card Basics,” found on the website of JEM America Corp, Inc. (“JEM America”). See NY K86983, dated July 21, 2004; Probe Card Basics, JEM America Corp., Inc., http://www.jemam.com/probecard. Here, CBP once again considers JEM America's “Probe Card Basics” to provide an accurate account of the IC manufacture and testing process and cites to the following passages from the JEM America website: 1.1 The Integrated Circuit Semiconductor Integrated Circuits (ICs) are essential in today's high-tech society. They can be found at the heart of a variety of products, from the simplest calculators to the fastest computers. As a result, the production of ICs has become a billion dollar industry, involving some of the world's most advanced technology. [Wafer] probe cards are important in the final phase of this production process, playing a vital role in the testing and measuring of integrated circuits. Figure 1-1: Integrated Circuit Wafer Integrated circuits are built from round, thin sheets of semiconducting material. Standard sheets, or wafers, are commonly made of silicon. These wafers can range from 5 cm (~2 in) to 20 cm (~8 in) in diameter and are roughly 0.10 cm (~0.04 inch) thick. On a single wafer, anywhere from 50 to 200 identical integrated circuits, or die, can be made. The process of taking a simple silicon wafer and creating from it circuitry which can use and store electricity is a complex process. In a sense, the circuitry is “embedded” in the silicon, just below its surface. Within this microscopic maze of circuitry, electrical signals flow from one point to the next, much in the same way that water flows in a riverbed. To interact with the world outside of the IC, these signals are passed back and forth through small metal pads attached to the wafer's surface (see Figure 1-1). The ability to make electrical contact with these metal pads is critical. Without some method of making this contact, the integrated circuit cannot be used. 1.2 Testing the IC In the testing of integrated circuits, [wafer] probe cards play this vital role of contacting the metal pads on a wafer's surface. ICs are tested by large machines, called testers, which send a series of electrical signals to each IC. During testing, the probe card and IC are held in place by another machine, called a prober. The prober might be described as the "arm" of a tester, doing the mechanical work of moving and aligning the probe card and IC. The probe card then functions primarily as the "hand" of a tester, allowing it to "touch" the metal pads on a wafer's surface (see Figure 1-2). This establishes an electrical connection between tester and IC, allowing signals to flow freely between them. An ICs response to these test signals then indicates whether it has been made correctly. Good ICs can then be separated from bad ones. Probe cards are at the center of this testing process. Figure 1-2: IC Tester and Prober (with probe card and wafer) With the help of the prober, the probe card is lowered onto the IC wafer until the probe tips come into contact with the wafer's metal pads. Test signals can then be passed between tester and IC. Figure 1-3: Probe Card and Wafer * * * * * The wafer probe cards at issue in HQ H011054 resemble the “Probe Card” identified above in Figure 1-3 of JEM America's “Probe Card Basics” and consist of a printed circuit board (“PCB”), numerous wafer probes (sometimes referred to as “probe needles”), and a structural support ring to which the wafer probes and PCB are attached. By transmitting and modifying electrical signals sent from automatic test equipment (“ATE”) to the semiconductor wafer, the probe cards provide an interface between the wafer and the ATE. During testing operations, electrical signals are sent from the ATE to the wafer probe card, where integrated circuits, resistors, capacitors, and other active components on the PCB manipulate the ATE signal and control the power and voltage characteristics of the signal before it is sent to the wafer via connections made by the wafer probes (probe needles). The wafer probes (probe needles), located along the underside of the probe card, make contact with the metal bonding pads of the wafer and facilitate the transmission of electrical signals between the probe card and the wafer. Returned electrical signals are sent from the wafer probe card to the ATE, where they are analyzed to measure the functional and operational integrity of the ICs located on the wafer.

Revocation of Headquarters Ruling Letters (HQ) H011054 and HQ H011056

tariff classification of wafer probe cards

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principals set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context with requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. The following HTSUS provisions will be referenced: 8536 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders and other connectors, junction boxes), for a voltage not exceeding 1,000 V; connectors for optical fibers, optical fiber bundles or cables. 8536.90 Other apparatus: 8536.90.40 Terminals, electrical splices and electrical couplings; wafer probers. 8536.90.80 Other. * * * * * 9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof. Other instruments and apparatus: 9030.82.00 For measuring or checking semiconductor wafers or devices. 9030.90 Parts and accessories: Other: Printed circuit assemblies: 9030.90.66 Of instruments and apparatus of subheading 9030.40 or 9030.82. * * * * * Note 1(m) to Section XVI provides, in pertinent part, as follows: This section does not cover: (m) Articles of chapter 90; * * * * * 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 HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP's practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 85.36 states, in pertinent part, as follows: (III) APPARATUS FOR MAKING CONNECTIONS TO OR IN ELECTRICAL CIRCUITS This apparatus is used to connect together the various parts of an electrical circuit. It includes: … (B) Other connectors, terminals, terminal strips, etc. These include small squares of insulating material fitted with electrical connectors (dominoes), terminal which are metal parts intended for the reception of conductors, and small metal parts designed to be fitted on the end of electrical wiring to facilitate electrical connection (spade terminal, crocodile clips, etc.) * * * * * Heading 8536, HTSUS, provides for “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders and other connectors, junction boxes), for a voltage not exceeding 1,000 V; connectors for optical fibers, optical fiber bundles or cables.” However, as Note 1(m) to Section XVI precludes classification of articles of Chapter 90 in this section, we must first examine whether the instant merchandise is classifiable in heading 9030, HTSUS. Heading 9030, HTSUS, provides, in relevant part, for “instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028,” although terms “apparatus” and “checking” are not defined in the HTSUS or the ENs. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001) (“To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources' and ‘lexicographic and other materials.” (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (Fed. Cir. 1982))). The Oxford English Dictionary defines the term “apparatus,” in relevant part, as “equipment, material, mechanism, machinery; or the mechanical requisites employed in scientific experiments or investigations.” Likewise, the term has been frequently construed by the courts to mean a “group of devices or a collection or set of materials, instruments or appliances to be used for a particular purpose or a given end.” ITT Thompson Industries, Inc. v. United States, 3 C.I.T. 36, 44 (1982). With regards to the term “checking,” the courts have provided guidance on the common meaning of the word as used under older tariff schedules, namely the Tariff Schedule of the United States (TSUS). In Corning Glass Works v. United States, 586 F.2d 822 (CCPA 1978), the United States Court of Customs and Patent Appeals (CCPA) defined “check” as “to inspect and ascertain the condition of[,] especially in order to determine that the condition is satisfactory.” Corning Glass Works, 586 F.2d at 822 (citing Webster's Third New International Dictionary, 381 (1971)); Photonetics, Inc. v. United States, 659 F. Supp. 2d 1317, 1323 (Ct. Int'l Trade 2009). Furthermore, the CCPA in Corning Glass Works concluded that “‘checking instruments' clearly and unambiguously encompasses machines… that carry out steps in a process for inspecting ampules to determine whether they conform to an imperfection-free standard.” Corning Glass Works, 586 F.2d at 822. While prior TSUS cases may be instructive in interpreting identical language in the HTSUS, they are not dispositive. H.R. Conf. Rep. No. 100-576, at 549-50 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582-83. As explained in the House Conference Report accompanying the Omnibus Trade and Competitiveness Act of 1988, which enacted the HTSUS: [i]n light of the significant number and nature of changes in nomenclature from the TSUS to the HTSUS, decisions by the Customs Service and the courts interpreting the nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. Consistent with the CCPA's definition of the term “checking instruments” in Corning Glass Works, CBP has previously classified machines that carry out steps in a process for inspecting and ascertaining the condition of electrical quantities as measuring or checking instruments and apparatus of Ch. 90. In NY K86983, dated July 21, 2004, CBP classified two models of wafer probers, used in the testing of ICs to automatically position etched wafers underneath a wafer probe card, in subheading 9030.82.00, HTSUS, as other instruments or appliances for measuring or checking electrical quantities, for measuring or checking semiconductor wafers or devices. There, CBP noted that the Tokyo Electron P-8 and P-12XL Fully Automatic Wafer Probers were incapable of performing independent measuring or checking functions, but that the machines were designed to be combined with an ATE and wafer probe card to form an IC testing system. Because the wafer probers were used to precisely position the ICs of an etched wafer underneath the probe needles of a wafer probe card, thereby establishing electrical connections between the ATE, wafer probe card, and test wafer ICs, CBP determined that the wafer prober machines were properly classified as measuring or checking instruments. See also NY A89407, dated November 25, 1996, subsequently modified by HQ 961332, dated April 7, 1998 (classifying wafer probers for IC testing in subheading 9030.82.00, HTSUS). Similarly, CBP has classified various models of ATE used to test and check ICs in subheading 9030.82, HTSUS. See, e.g., NY R04578, dated September 7, 2006; HQ 965528, dated August 14, 2002; and NY E81071, dated May 21, 1999. Having examined the common, or commercial, meanings of the terms “apparatus” and “checking” as used in heading 9030, HTSUS, we find that the instant wafer probe cards are accurately described as apparatus that carry out steps in a process for determining the condition of the electrical properties of ICs etched onto semiconductor wafers. First, with regards to the term “apparatus,” the wafer probe cards are described as assemblies consisting of a PCB, numerous wafer probes (probe needles), and a reinforced structural support onto which the PCB and wafer probes (probe needles) are mounted. Second, the wafer probe cards perform “checking” operations, because they contain PCBs that manipulate and control the power and voltage characteristics of electrical signals before such signals are sent to the wafer via connections made by the wafer probes (probe needles). The presence of a PCB allows the wafer probe cards to interpret coded instructions sent by the automatic test equipment (ATE), determine the timing and order of signals to be sent to the test subject ICs, and manage data flow between the wafer probe card and the ATE. Inasmuch as the manipulation and control of electrical signals is a necessary step to test the functional and operational integrity of the ICs on semiconductor wafers, CBP concludes that the probe cards are accurately described as checking instruments, as defined by the CIT in Corning Glass Works, 586 F.2d at 822. Consequently, we find that the probe cards are classified in heading 9030, HTSUS, which provides for “Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof.” As the probe cards are described fully in heading 9030, HTSUS, as apparatuses for measuring or checking electrical quantities, their classification under heading 8536, HTSUS, is precluded by application of Note 1(m) to Section XVI.


At issue in HQ H013678 was the classification of electrical circuits imported by Kionix, Inc. Each Kionix circuit contains a silicon sensor chip that responds to acceleration (an accelerometer) or rotation (a gyroscope), in addition to a separate silicon integrated circuit chip (an ASIC). The sensor chip is a summation of many different capacitors each consisting of many different movable silicon beams. The silicon beams move in response to simple changes in motion, causing a change in capacitance which the ASIC chip then interprets and translates into usable electrical signals from the outside world. The sensor chip is separately produced via thin film technology. Kionix ships the unpackaged fabricated sensor and circuit chips to Asia, where they are assembled on a single leadframe or single laminate, encapsulated with plastic, and shipped back for testing. The Kionix sensor and ASIC die are mounted on a single leadframe substrate or a single laminate substrate. When imported back into the U.S., the two chips are contained in an overmolded plastic package and connected by miniature wires.

Revocation of HQ H013678
assembled multi-die products

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows: Electronic integrated circuits and microassemblies; parts thereof: 8542.39.00 Other… * * * Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: 8543.89 Other: Other: Other: 8543.89.96 Other… * * * 9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter: 9031.80 Other instruments, appliances and machines: 9031.80.80 Other… * * * Note 1(m) to Section XVI provides: This section does not cover: (m) Articles of chapter 90; Note 8(b) to Chapter 85, for purposes of heading 8542, HTSUS, defines integrated circuits (HICs) as follows: (b) "Electronic integrated circuits" are: Monolithic integrated circuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor or compound semiconductor material (for example, doped silicon, gallium arsenide, silicon germanium, iridium phosphide) and are inseparably associated; Hybrid integrated circuits in which passive elements (resistors, capacitors, inductances, etc.), obtained by thin- or thick-film technology, and active elements (diodes, transistors, monolithic integrated circuits, etc.), obtained by semiconductor technology, are combined to all intents and purposes indivisibly, by interconnections of interconnecting cables, on a single insulating substrate (glass, ceramic, etc.). These circuits may also include discrete components; Multichip integrated circuits consisting of two or more interconnected monolithic integrated circuits combined to all intents and purposes indivisibly, whether or not on one or more insulating substrates, with or without leadframes, but with no other active or passive circuit elements. Note 8 further provides that “[f]or the classification of articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the tariff schedule which might cover them by reference to, in particular, their function.” In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The 2012 Explanatory Notes to heading 8542, HTSUS, provide as follows: The articles of this heading are defined in Note 8 (b) to the Chapter. Electronic integrated circuits are devices having a high passive and active element or component density, which are regarded as single units (see Explanatory Note to heading 85.34, first paragraph concerning elements or components to be regarded as “passive” or “active”). However, electronic circuits containing only passive elements are excluded from this heading. Unlike electronic integrated circuits, discrete components may have a single active electrical function (semiconductor devices defined by Note 8 (a) to Chapter 85) or a single passive electrical function (resistors, capacitors, inductances, etc.). Discrete components are indivisible and are the basic electronic construction components in a system. However, components consisting of several electric circuit elements and having multiple electrical functions, such as integrated circuits, are not considered as discrete components. Electronic integrated circuits include memories (e.g., DRAMS, SRAMs, PROMS, EPROMS, EEPROMS (or E2PROMS)), microcontrollers, control circuits, logic circuits, gate arrays, interface circuits, etc. Electronic integrated circuits include : (I) Monolithic integrated circuits. These are microcircuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor material (doped silicon, for example) and are therefore inseparably associated. Monolithic integrated circuits may be digital, linear (analogue) or digital-analogue. (II) Hybrid integrated circuits. These are microcircuits built up on an insulating substrate on which a thin or thick film circuit has been formed. This process allows certain passive elements (resistors, capacitors, inductances, etc.) to be produced at the same time. However, to become a hybrid integrated circuit of this heading, semiconductors must be incorporated and mounted on the surface, either in the form of chips, whether or not encased, or as encased semiconductors (e.g., in specially designed miniature casings). Hybrid integrated circuits may also contain separately produced passive elements which are incorporated into the basic film circuit in the same way as the semiconductors. Usually these passive elements are components such as capacitors, resistors or inductors in the form of chips. Substrates made up of several layers, generally ceramic, heat-bonded together to form a compact assembly, are to be taken to form a single substrate within the meaning of Note 8 (b) (ii) to this Chapter. The components forming a hybrid integrated circuit must be combined to all intents and purposes indivisibly, i.e., though some of the elements could theoretically be removed and replaced, this would be a long and delicate task which would be uneconomic under normal manufacturing conditions. (III) Multichip integrated circuits. These consist of two or more interconnected monolithic integrated circuits combined to all intents and purposes indivisibly, whether or not on one or more insulating substrates, with or without leadframes, but with no other active or passive circuit elements. Multichip integrated circuits generally come in the following configurations : - Two or more monolithic integrated circuits mounted side by side; - Two or more monolithic integrated circuits stacked one upon the other; - Combinations of the configurations above consisting of three or more monolithic integrated circuits. These monolithic integrated circuits are combined and interconnected into a single body and may be packaged through encapsulation or otherwise. They are combined to all intents and purposes indivisibly, i.e., though some of the elements could theoretically be removed and replaced, this would be a long and delicate task which would be uneconomic under normal manufacturing conditions. Insulating substrates of the multichip integrated circuits may incorporate electrically conductive regions. These regions may be composed of specific materials or formed in specific shapes to provide passive functions by means other than discrete circuit elements. Where conductive regions are present in the substrate, they are typically relied upon as a means by which the monolithic integrated circuits are interconnected. * * * * In Headquarters Ruling Letter (HQ) H013678, dated June 1, 2009, CBP determined that the Kionix devices at issue were classified in heading 8543, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in Chapter 85. Kionix argues that this conclusion is incorrect, and that the Kionix multi-die products are classified in heading 8542, HTSUS, as hybrid integrated circuits, or alternatively, as multichip integrated circuits. CBP has consistently interpreted Note 8 to Chapter 85 (previously Note 5) to require that hybrid integrated circuits contain passive nondiscrete components, built up on the substrate. In HQ H013678, CBP concluded that the instant Kionix devices were not classifiable as hybrid integrated circuits of heading 8542, HTSUS, because no circuit was built up on the substrate. The Kionix electronic circuit contains no nondiscrete components, passive or active. The sensor chip (a passive element) is a discrete component and is not built up on the surface of the same substrate to which the ASIC chip is mounted. Kionix argues that legal note 8 and EN 85.42(II) require only that hybrid integrated circuits contain elements obtained by film technology, whether discrete or built up on the substrate. Stated conversely, counsel does not believe that elements must be produced through film technology directly on the substrate of the hybrid integrated circuit, in the mass, before the semiconductors and discrete passive components are added to the substrate. These arguments have already been extensively addressed in prior CBP rulings, in which CBP concluded that hybrid integrated circuits must contain non-discrete passive elements produced by film technology directly on (in the mass of) the insulating substrate on which active elements produced via semiconductor technology are incorporated. See, e.g., HQ 951926, dated September 18, 1992; HQ 962750, dated January 10, 2000; HQ 961050, dated May 1, 2000; HQ 964606, dated May 2, 2002; HQ H013678, dated June 1, 2009; NY I82633, dated June 26, 2002; NY N086783, dated January 6, 2010; and NY N216102, dated February 17, 2012. As the instant products have only discrete passive components which are not produced directly on the insulating substrate to which the semiconductor chip is added, they are not hybrid integrated circuits of heading 8542, HTSUS. Kionix further contends that HQ H013678 is inconsistent with another CBP ruling on substantially similar merchandise, HQ 963150, in which CBP classified certain acceleration sensors in heading 8542, HTSUS, as hybrid integrated circuits. Counsel claims that the instant Kionix electronic circuits are identical in function to the sensors at issue in HQ 963150, and thus the Kionix devices should also be classified in the same heading. HQ 963150, however, does not specify whether the passive elements of the integrated circuit at issue were created in the mass of the same substrate upon which the semiconductor devices and other discrete components were added, but the ruling does note that its conclusion is consistent with the interpretation of Note 8 and EN 85.42 articulated in HQ 961050 (i.e., that hybrid integrated circuits must contain non-discrete passive elements formed by film technology in the mass of the same insulating substrate upon which active elements formed by semiconductor technology are incorporated). Furthermore, we note that classification in heading 8542, HTSUS, is not based on the function of the product, but rather the method of manufacture. If a circuit is manufactured in a way that meets the requirements of the legal text and the ENs for heading 8542, HTSUS, the function of the device is considered in classification at the subheading level under heading 8542, HTSUS. In the alternative, Kionix contends that the instant products are multichip integrated circuits of heading 8542, HTSUS, because the ASCIS and the sensor chip are both monolithic integrated circuits pursuant to EN 85.42. Note 8(b) to Chapter 85 defines monolithic integrated circuits as “integrated circuits in which the circuit elements (diodes, transistors, resistors, capacitors, inductances, etc.) are created in the mass (essentially) and on the surface of a semiconductor or compound semiconductor material (for example, doped silicon, gallium arsenide, silicon germanium, iridium phosphide) and are inseparably associated.” In support of this argument, Kionix notes that the sensor chip is created in the mass of a silicon wafer via film technology identical to that used in conventional monolithic circuit manufacturing, and that the components are inseparably associated. However, a monolithic circuit must have both passive and active components. The Kionix devices contain one monolithic integrated circuit-the ASIC chip-and one passive component-the sensor chip. Thus, the instant devices are not multichip integrated circuits, because they contain only one monolithic integrated circuit. Kionix argues that the sensor chip should be considered a monolithic circuit in and of itself, because the capacitors in the sensor chip change capacitance upon movement or acceleration and thus are not fully passive elements. However, the fact that the capacitance of a capacitor can change does not transform it from a passive to an active element. Capacitors are considered passive elements, but they do not have to produce a fixed output. In any case, even if we considered the capacitors in the sensor chip to be an active element, the sensor chip still would not have both the passive and active components necessary to constitute a monolithic integrated circuit in its own right. Because the sensor chip is not a monolithic integrated circuit, the combination of the ASIC and the sensor would have only one monolithic circuit and thus cannot be considered a multichip integrated circuit. Finally, the merchandise at issue was examined by the CBP Laboratory in San Francisco, and was determined not to constitute an integrated circuit because the sensor chip was separately produced. Counsel argues, in the alternative, that if CBP does not consider the Kionix electronic circuits to be classified in heading 8542, HTSUS, as integrated circuits, that they should be classified in heading 9027, HTSUS, instruments and apparatus for physical or chemical analysis, or heading 9031, HTSUS, as measuring or checking instruments. Heading 9027, HTSUS, however, is limited to devices which, in addition to simply measuring a substance or force, interpret or analyze the measured data. See e.g., HQ 955445 dated January 19, 1994, which classified a particle spectrometer under heading 9031, HTSUS. Classification under heading 9027, HTSUS, was determined to be incorrect because the instrument measured the size, distribution and shape of the particles without performing any actual analysis of the particles. See also, HQ 967082, dated June 04, 2004, which classified two distinct types of gas detectors in heading 9027, HTSUS, and 8531, HTSUS. All models of the gas detectors contained a sensor which measured the parts per million (ppm) of a gas in a general area, and electronics that determined when that gas level went beyond a designated range. However, some models also contained additional electronics that analyzed and displayed the gas level data. These were classified in heading 9027, HTSUS, while the gas detectors with only alarm and no display/analysis capabilities were classified in heading 8531, HTSUS. The Kionix accelerometers, like the devices discussed above, do not identify or provide a measurement of a particular property. They simply detect changes in motion via displacement of the silicon beams in the sensor chip, which causes a change in capacitance, and interpret or translate the resulting signal via the ASIC chip. In this manner, the Kionix accelerometers are similar to the MEMS accelerometers at issue in NY F82413, dated March 3, 2000, which were classified by CBP in heading 9031, HTSUS. Like the instant merchandise, the MEMS accelerometers at issue in NY F82413 measured lateral acceleration via the displacement of movable silicon elements, causing a change in electrical capacitance. The Kionix accelerometers are similarly classified in heading 9031, HTSUS, as measuring or checking instruments. Because the Kionix accelerometers are classified in Chapter 90, they are excluded from classification in heading 8543, HTSUS, pursuant to Note 1(m) to Section XVI.