The subject merchandise consists of the PAK MKII, a compact mobile multi-channel measurement system device that is used for a wide range of vibration, acoustical, and other analyses. It consists of an aluminum outer casing with insertable electronic cards that record measurement data via a cable connected to the device and the data collection's source, such as a microphone, accelerometer, pressure transducers, etc. The PAK MKII records electronic signal data in a variety of measuring and acquisition applications, such as acoustic and vibration measuring. After recording these signals, the subject merchandise translates the signals into readable data and sends them to additional equipment, usually a computer, to interpret the data. The subject merchandise is connected to these computers via Ethernet or wireless means. Depending on what type of measurement sensor to which the subject merchandise is connected, the PAK MKII can process and record data such as acceleration, strain, displacement, rotational speed, force, sound, pressure, and temperature. The PAK MKII can be used with a single data source or with multiple data sources. It is used primarily (though not exclusively) in automotive and aerospace applications. In the industry, this merchandise is known as a measuring “front end” that work with a variety of sensors as part of an overall measurement system. The PAK MKII can be universally configured for use with almost any common sensors; as a result, it is adaptable to a wide range of measurement-related applications. Pictures of the subject merchandise submitted with this request for reconsideration show the subject PAK MKII as a square device positioned outside an automobile. In these pictures, PAK MKII is receiving signals from that automobile with data from such devices as accelerometers, microphones, etc. and transmitting them to a computer.

Classification of the PAK MKII multi-channel measurement system device

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied in order. The HTSUS provisions under consideration are as follows: 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: 9030.84 Other instruments and apparatus: 9030.84.00 Other, with a recording device. * * * 9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: 9031.80 Other instruments, appliances and machines: 9031.80.80 Other. * * * 9033.00.00 Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90. Note 2 to Chapter 90, HTSUS, states the following: Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules: Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8487, 8548 or 9033) are in all cases to be classified in their respective headings; Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind; (c) All other parts and accessories are to be classified in heading 9033. 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 9030, HTSUS, states, in pertinent part, the following: (B) OSCILLOSCOPES, SPECTRUM ANALYSERS AND OTHER INSTRUMENTS AND APPARATUS FOR MEASURING OR CHECKING ELECTRICAL QUANTITIES Instruments and apparatus for measuring or checking electrical quantities may be indicating or recording types… The main types of electrical measurements are: Measurement of electric currents. This is carried out, in particular, by means of galvanometers or amperemeters (ammeters). 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… (I) MEASURING OR CHECKING INSTRUMENTS, APPLIANCES AND MACHINES (A) These include:… (18) Apparatus for measuring or detecting vibrations, expansion, shock or jarring, used on machines, bridges, dams, etc… (29) Special electrical instruments for measuring stress and strain. They are based, for example, on the following principles : Variations in the resistance of a wire when subjected to stress (strain gauges). However, electrical resistors known as “ strain gauges ” fall in heading 85.33. (ii) Variations of capacity between specially constructed electrodes. (iii) Electric potentials produced by quartz or similar crystals when subjected to pressure. This group also includes dynamometers, used to measure the compression or tractive force of hydraulic presses, rolling mills, material testing machines, etc., and also for load tests (aircraft). They usually consist of a metal body (cylinder, ring, etc.) to which stress is applied, and of a measuring apparatus, graduated in units of weight, which records any change in the shape of the metal body. However, dynamometers for testing the properties of materials are excluded (heading 90.24). The EN to heading 9033, HTSUS, states, in pertinent part, the following: This heading covers all parts and accessories for machines, appliances, instruments or apparatus of this Chapter, other than: (1) Those mentioned in Chapter Note 1… (2) Those covered by Chapter Note 2(a), which constitute in themselves machines, appliance, instruments or apparatus of any particular heading of Chapter 90 or of Chapter 84, 85 or 91 (other than the residual headings 84.87, 85.48 or 90.33). It therefore follows that separately presented articles of this type must be classified in their respective headings… (3) Those identifiable as suitable for use solely or principally with a particular kind of machine, appliance, instrument or apparatus, or with a number of machines, appliances instruments or apparatus of the same heading of this Chapter; these are classifiable, by application of Chapter Note 2(b), in the same heading as the relevant machines, appliances, instruments or apparatus. NY N184613 classified the subject merchandise in heading 9033, HTSUS, as “Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.” However, Note 2 to Chapter 90, HTSUS, requires that if parts and accessories for the merchandise of this chapter are described by any of the headings of Chapters 84, 85, 90 or 91, HTSUS, then they must be classified in their respective headings. See Note 2 to Chapter 90, HTSUS. Therefore, a part or accessory of a machine which by itself is a good of any of these headings must be classified in that heading rather than as a part or accessory of the larger machine. As a result, we first examine classification in these headings. Heading 9031, HTSUS, provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof.” 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. Adhering to this interpretation, 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, e.g., 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 H163998, dated May 15, 2012; HQ H009364, dated November 23, 2009; HQ 965639, dated September 12, 2002; HQ 954682, July 14, 1994. Furthermore, heading 9031, HTSUS, includes apparatus for measuring or detecting vibrations, expansions, shock or jarring; such apparatus are used on machines, bridges, dams, etc. See EN 90.31. The heading also covers special electrical instruments for measuring stress and strain. See EN 90.31. The subject merchandise records electronic signal data on many variables, including vibrations, strain, acoustics, rotational speed, temperature, etc. It then sends these data to a computer for analysis. Thus, although the subject PAK MKII does not measure these variables on its own, it performs steps in the process of measuring. As a result, the subject merchandise meets the cited definition of “measuring,” and it comports with the exemplars of heading 9031, HTSUS. As such, the PAK MKII is classified in heading 9031, HTSUS. Thus, by application of Note 2 to Chapter 90, HTSUS, the subject merchandise is classified as a measuring instrument of heading 9031, HTSUS, rather than as a part and accessory of heading 9033, HTSUS. This classification is consistent with prior rulings that classify nearly identical merchandise, including independent and free-standing data recorders, in heading 9031, HTSUS. See, e.g., HQ H112722, dated September 30, 2010; HQ H009364, dated November 23, 2009; HQ 954194, dated June 7, 1993; HQ 952235, dated November 4, 1992; HQ 089391, dated February 6, 1992; HQ 961096, dated June 15, 1998. Lastly, we note that prior CBP rulings have considered heading 9030, HTSUS, which provides for “…other instruments and apparatus for measuring or checking electrical quantities” when classifying similar merchandise. See, e.g., HQ H112722. However, the subject PAK MKII records electronic signals in a variety of measuring applications, such as acoustic and vibration, but it also displays data relating to temperature, pressure, displacement, and other processing factors. Given that the PAK MKII is a measuring instrument for more than just electrical quantities, it is precluded from heading 9030, HTSUS.


The first item is a pair of earphones with an accompanying medallion that your company markets as the “LG Heart Rate Monitor Earphone,” model # FR74. The set is designed to be connected to a smart phone via Bluetooth technology and allows the wearer to remotely control some basic telephone and music playback functions through radio frequency, as well as monitor heart rate through the LG fitness application. The application is to be downloaded to the smart phone and works in conjunction with various third-party fitness applications. The pair of earphones with the medallion does not have time keeping, telephone, or music reproducing functions independent of the smart phone. The earphones are connected via a wire to the medallion which in turn transmits and receives data from the connected smart phone. The earphones receive music and voice via the smart phone through the medallion. The earphones also sense heart rate through sensors built into the back of each ear bud. The medallion acts as power on/off switch, a battery check, and a heart rate check, and transmits and receives data from the smart phone. It is designed to be clipped onto the waistline of the user. A remote control that consists of a set of control buttons is built into the wire. This button remotely controls the music played on the smart phone. The second item is an electronic wrist band which your company markets as the “LG Fitness Band” model # HL84-B. It has a light-emitting diode (LED) screen that displays time, telephone call information, and basic telephone controls, Social Networking Service (SNS) notifications, heart rate information, and music playback controls of the smart phone. The wrist band is connected to the wearer's smart phone and, independent of the smart phone, to the earphones via Bluetooth. The wrist band does not have telephone, music playback, or time keeping functions independent of the smart phone. The screen is activated either by touch or when the wearer turns his wrist upward to view the information on the screen. The wrist band detects the pulse rate of the wearer and thereby the number of steps that the wearer is taking, effectively functioning as a pedometer. Data for distance, speed, and calorie consumption is accumulated via the built-in accelerometer, as well as up and down movement via the built-in altimeter. The data is transmitted to the application on the smart phone to be calculated for display either on the smart phone or the wrist band. The two items can work in conjunction with each other, but are packaged separately as imported and intended to be sold separately, despite being displayed together in retail stores. Thus, we will consider them as separate items to be classified as such. It is not necessary to use both items together to utilize the functions of each, with the exception of the wrist band not being able to display heart rate information without the earphones and the smart phone application. As an initial matter, we are unable to rule on the classification of the LG Heart Rate Monitor Earphone model # FR74. After reviewing your request, it has come to our attention that certain published rulings need to be reconsidered so that we do not have in force rulings that may be inconsistent with our current views on the classification of earphones. We intend to initiate a notice and comment procedure pursuant to 19 U.S.C. §1625(c) to revoke or modify one or more rulings. In this manner we believe we can best meet our obligations regarding the sound administration of the HTSUS and other customs and related laws. See 19 C.F.R. §177.7(a). We invite you to comment on the relevant proposed modification or revocation, published in an upcoming issue of the Customs Bulletin, available for viewing at www.cbp.gov. The notice and comment procedure typically takes 60 days from the date of publication of the proposed change before a final modified or revoked ruling is published and, other than as provided in 19 C.F.R. §177.12(e), 60 additional days before the change becomes effective. On publication of the final ruling, if you still wish you may resubmit your request for a prospective ruling to CBP, National Commodity Specialist Division, One Penn Plaza, 10th Floor, New York, NY 10119.

Ruling request regarding the tariff classification of LG Heart Rate Monitor Earphone model # FR74 and LG Fitness Band model # HL84-B

Harmonized Tariff Schedule of the United States (HTSUS) General Rules of Interpretation (GRI) 1 and 3(b)

Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may be applied in order. GRI 3(a) provides that “the heading which provides the most specific description shall be preferred to headings providing a more general description.” GRI 3(b) provides that “composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character.” The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The HTSUS provisions at issue are as follows: 8517 Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528; parts thereof: 8518 Microphones and stands therefor; loudspeakers, whether or not mounted in their enclosures; headphones and earphones, whether or not combined with a microphone, and sets consisting of a microphone and one or more loudspeakers; audio-frequency electric amplifiers; electric sound amplifier sets; parts thereof: 8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus 9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: 9031.80 Other instruments, appliances and machines: 9031.80.80 Other Note 3 of Section XVI of the HTSUS provides that “unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.” Note 3 to Chapter 90 provides that “[t]he provisions of Notes 3 and 4 to Section XVI apply also to this Chapter.” It is well-settled that articles are to be classified in their condition as imported. See, e.g., CBP Ruling HQ H236523 (July 2, 2014). The LG Fitness Band model # HL84-B performs a wireless transceiver function of heading 8517, an accelerometer and altimeter function of heading 9031, a speaker function of heading 8518, and a radio remote control function of heading 8526. While it will display the time when receiving that data from a cell phone, it does not keep time itself. It is therefore quite similar to the merchandise in CBP Ruling HQ H246726 (June 23, 2014), but without the timekeeping function. Hence, where that ruling considered the merchandise first under GRI 3 as a composite good, and then turned to the remaining Section XVI and Chapter 90 functions, we need only consider the principal function here. In HQ H246726, we found that the principal function could not be discerned and the merchandise was classified under GRI 3(c) in heading 9031. We find that the functions of the instant merchandise are similarly equal in their importance to the functioning of the device. The wrist band is using the measuring functions throughout a wearer's workout, but the receiving and transmitting function and radio remote control are likely used on a regular basis. Indeed, the device is purchased for use of all of these functions. Hence, the principal function cannot be determined and GRI 3(c) is used to classify the device in heading 9031, HTSUS.


The merchandise at issue consists of a wafer probe card, probe interface board (PIB), and load board used for the testing of integrated circuits (“ICs”). Specifically, the articles are used in automated test equipment (“ATE” or “tester”) to test and validate IC die during different stages of the semiconductor manufacturing process. Whereas the wafer probe card and PIB are used in combination with one another to test “wafer die” prior to the “packaging” of individual ICs, the load board is used during later-stages of the manufacturing process to conduct final testing on “packaged die.” The Qualcomm wafer probe card consists, in relevant part, of a printed circuit board (“PCB”), wafer probes, and a structural ring. Similarly, the Qualcomm PIB is primarily constructed of a PCB and connectors that serve as an interface with the wafer die under test. During the fabrication process, the wafer probe card and PIB are both used in conjunction with the automatic test equipment (ATE or tester) to serve as an interface for electrical signals to pass between the ATE and device under test (“DUT”), typically wafer or packaged die. Additionally, the PIB helps position the wafer probe card to ensure that the wafer probes are properly aligned with each die on the wafer. Once correctly positioned, the tester sends electrical signals to the PIB, through the wafer probe card, and ultimately to the individual dies on the wafer. The Qualcomm load board is constructed of a PCB, stiffener, test sockets, and interface pads. Like the wafer probe card and PIB, the load board is used to test the electrical properties of integrated circuit dies. However, whereas the wafer probe card and PIB are used to test integrated circuit die located on a wafer, the load board is used to test die that have undergone singulation and packaging. During testing of wafer die and packaged die, the Qualcomm ATE tester controls all electrical signals that are passed back and forth between the tester and the die under test. The wafer probe card, PIB, and load board serve as an interface between the tester and the DUT, and the returned electrical signals merely pass through the wafer probe card and PIB or the load board to the tester. Because the Qualcomm wafer probe card, PIB, and load board do not manipulate the electrical signals sent from the tester to the die, the hardware serves as a “passive” interface between the tester and the device under test. Accordingly, after electrical signals are sent from the tester to the wafer die or packaged die under test, the returned electrical signals pass through the wafer probe card and PIB (or load board, in the case of packaged die testing) to the tester, where they are analyzed to validate the properties of the wafer die or packaged die.

Tariff classification of a wafer probe card

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. GRI 6 provides, in pertinent part, that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The following HTSUS provisions will be referenced: 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 2(b) to Chapter 90, HTSUS, provides, in pertinent part, as follows: 2. Subject to Note 1 above, parts and accessories for machines, apparatus, instruments or articles of this Chapter are to be classified according to the following rules: […] (b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 90.10, 90.13 or 90.31) are to be classified with the machines, instruments or apparatus of that kind; * * * * * 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 90.30, HS, states, in pertinent part, as follows: PARTS AND ACCESSORIES Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), separately presented parts and accessories of instruments or appliances of this heading remain classified here. * * * * * Upon consideration of the physical description and function of the instant Qualcomm wafer probe card, PIB, and load board, CBP notes that there is no dispute that the merchandise is properly described by the text of heading 9030, HTSUS, which provides, in relevant part, for instruments and apparatus for measuring or checking electrical quantities, and parts and accessories thereof. Discussed at length in Headquarters Ruling Letter (HQ) H192481, dated June 25, 2014, the courts have provided guidance on the common meaning of the term “checking,” and have described the action 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 U.S. Court of Customs and Patent Appeals (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. Consistent with the CCPA's definition of the term “checking instruments,” 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 heading 9030, HTSUS. For example, in New York Ruling Letter (NY) K86983, dated July 21, 2004, CBP classified two models of wafer probers-machines used during wafer die testing to precisely position an etched wafer underneath the probe needles of a wafer probe card-in subheading 9030.82, HTSUS. 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 performed operations in combination with other automated test equipment (for example, a tester unit and wafer probe card) to form a complete wafer die testing system. 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 testers-machines used to control, measure, and evaluate the transmission of electrical signals to wafer die-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. Most recently, in ruling letter HQ H192481, CBP considered the tariff classification of certain wafer probe cards that performed specific operations in the testing and validation of the electrical properties of wafer die. Specifically, the wafer probe cards at issue in H192481 were constructed with PCBs designed to “manipulate and control the power and voltage characteristics of electrical signals before such signals are sent to the wafer.” Additionally, CBP found that the design of the PCB allowed the wafer probe card to perform a variety of discrete functions, including: interpreting coded instructions sent by the tester, determining the timing and order of electrical signals to be sent to the wafer die, and managing data flow between the wafer probe card and the tester. Inasmuch as the manipulation and control of electrical signals is a necessary step to test the functional and operational integrity of wafer die, CBP concluded that the wafer probe cards in H192481 were accurately described as checking instruments, as defined by the CIT in Corning Glass Works, 586 F.2d at 822, and classified the merchandise in subheading 9030.82.00, HTSUS, as other instruments and apparatus for measuring or checking semiconductor wafers or devices. In contrast with the wafer probe card classified under subheading 9030.82.00, HTSUS, in ruling letter HQ H192481, Qualcomm asserts that the instant wafer probe card, PIB, and load board do not perform specific operations in the testing and validation of wafer die and packaged die. To the contrary, Qualcomm states that the wafer probe card, PIB, and load board do not manipulate the electrical signals sent from the tester to the die under test. During testing of wafer die and packaged die, the Qualcomm ATE tester controls all electrical signals to be passed back and forth between the tester and the die under test. Similarly, after electrical signals are transmitted from the tester to the device under test, the returning electrical signals pass through the wafer probe card and PIB (or load board, in the case of packaged die testing) to the tester, where the tester analyzes the signals to validate the properties of the wafer die or packaged die. Consequently, Qualcomm asserts that because the wafer probe card, PIB, and load board serve as “passive” interfaces between the tester and device under test, the articles substantially differ from the merchandise at issue in H192481, and instead are properly classified as “parts and accessories” under subheading 9030.90.66, HTSUS. Upon consideration of the physical description and function of the Qualcomm wafer probe card, PIB, and load board, CBP concludes that the instant merchandise substantially differs from the wafer probe card previously considered in ruling letter HQ H192481. Specifically, unlike the wafer probe card at issue in ruling letter HQ H192481, the Qualcomm wafer probe card, PIB, and load board do not perform specific operations in the testing and validation of the electrical properties of wafer die or packaged die. Consequently, ruling letter HQ H192481 is not dispositive as to the tariff classification of the instant merchandise. Subheading 9030.90.66, HTSUS, provides, in relevant part, for “parts and accessories” of other instruments and apparatus for measuring or checking semiconductor wafers or devices. However, the phrase “parts and accessories” is not defined in the Nomenclature, and CBP has relied on guidance from the courts to inform its understanding of the scope of “parts and accessories.” The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. Ltd. P'ship. v. United States (Bauerhin), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (Willoughby), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (Pompeo), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part' of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779. More recently, the Court of International Trade (CIT) applied the Willoughby and Pompeo tests when it addressed the issue of whether two vase-shaped glass structures were classifiable as glassware in heading 7013, HTSUS, or as parts of lamps in heading 9405, HTSUS. Pomeroy Collection, Ltd., v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int'l Trade 2011). In applying Willoughby to the first article, the CIT ruled that “[w]hen imported, the claimed article is dedicated solely for use in such article, and, when applied to that use, the claimed part meets the Willoughby test.” Ibid, at 1261-1262. In Pomeroy, the court found that first article satisfied the Willoughby test because the hurricane lamp “clearly could not function without the first article in question” since the lamp relied upon the glass structure to hang upon. Id. at 1262. The court found that the second glass structure satisfied Pompeo because the evidence showed that the glass structure contained the flame and enabled the candles to remain lit and to prevent open flames. Thus, the court also found that the second article at issue also satisfied the Willoughby precedent, because “when applied to that use,” the lamp could not function without the glass structures. Id. In other words, to satisfy the Pompeo test, two prongs must be satisfied: (1) the article must be solely dedicated for use with the product it claimed to be a part of and, (2) when applied to that use, the article cannot function without the article at issue. With respect to the Qualcomm wafer probe card, PIB, and load board, CBP finds that the technical descriptions of the instant merchandise indicate that the articles are specially designed and fabricated to be used with Qualcomm testers to validate IC die during different stages of the semiconductor manufacturing process. During testing of wafer die and packaged die, the Qualcomm ATE tester controls all electrical signals to be passed back and forth between the tester and the die under test. The wafer probe card, PIB, and load board act as an interface between the tester and the die and serve as a conduit for electrical signals to be passed between the tester and the die. Without the wafer probe card, PIB, or load board to serve as an interface between the tester and the device under test, the tester cannot transmit electric signals to and from the wafer die or packaged die. Consequently, because the Qualcomm wafer probe card, PIB, and load board are dedicated for use solely with an ATE tester unit and are necessary for the transmission of electronic signals to wafer and packaged die during testing and validation operations, CBP finds that the articles are properly described as “parts” of instruments and apparatus for measuring or checking semiconductor wafers or devices under the Willoughby and Pompeo tests. Accordingly, the Qualcomm wafer probe card, PIB, and load board are classifiable under subheading 9030.90.66, HTSUS, as parts of other instruments and apparatus for measuring or checking semiconductor wafers or devices.


HQ H287893 August 29, 2018 CLA-2 OT:RR:CTF:EMAIN H287893 PF CATEGORY: Classification TARIFF NOS.: 8504.40.95, 8517.62.00, 8537.10.91, 8538.90.30 Electronics Center of Excellence and Expertise U.S. Customs and Border Protection 6601 NW 25th Street Miami, Florida 33122 Attn: Ivon Spataro, Supervisory Import Specialist RE: Request for internal advice; Classification of a Power Grid Protective Relay and Components Dear Center Director: This is in response to a request by the Electronics Center of Excellence and Expertise (“ECEE”) for internal advice as to the proper classification of a power grid protective relay (“protective relay” or “subject merchandise”) and components under the Harmonized Tariff Schedule of the United States (“HTSUS”). ECEE submitted its request following receipt of a December 13, 2016 request on behalf of ABB Distribution Automation (“ABB-DA”) that seeks internal advice from our office pursuant to 19 C.F.R. §177.11(a) (“internal advice request”). Our determination as to the classification of the subject merchandise is set forth below. FACTS: The subject merchandise is described and marketed as the “Relion Relay family,” which are enclosures containing various printed circuit board assemblies (“PCBAs”), switches, relays, and indicators that are used in various electrical monitoring and switching applications to control certain systems, power grids, motors, and external relays. The protective relay collects data and provides a user interface for a technician to interact with these systems in order to affect a change in the configuration or open/close switches. The protective relay is equipped with a central processor unit (“CPU”) PCBA that contains the control circuitry and allows for automatic or user operated remote control of the system it is designed to supervise. The CPU is imported with memory, a processor, and a pre-programmed Basic Input/Output System. The subject merchandise also contains input/output PCBAs or modules, including an analog and binary input module, binary input/output module, and sensory input module, that receive sensor data and issue control signals, as commanded by the CPU to perform some action. The protective relay is furnished with an external control panel ranging from a basic front panel and switches/indicators to a human machine interface (“HMI”), which consists of a keypad and display screen, where users can physically control and program the device. The analog and binary input modules are the interface between the CPU and allow the protective relay to make decisions based on that input data. The protective relay also has a communication module, which is the interface between the protective relay and the outside world, which can include other protective relays, supervisory computers, or other devices connected on a Smart Grid network. The communications module has a variety of communications capabilities under standard Information Technology standards, such as Ethernet, RS-485, and IRIG-B. The backplane board is fitted with connectors and physically holds and electrically connects the other modules within the unit. The power supply board is the power supply for the various modules within the unit. ABB-DA states that the “central function of the [protective relay] is the routing of information and control signals throughout a data network that serves to monitor and control the power transmission system.” According to product literature provided by ABB-DA, the function of the protective relay, includes, feeder protection, bay control, transformer protection, line distance protection, line differential protection, motor protection, generator protection, busbar protection, capacitor bank protection, breaker protection, voltage protection, feeder automation, and railway application. ABB-DA’s protective relay 605 Series is noted to perform “feeder protection, motor protection, and current protection.” ABB-DA’s protective relay 615 Series is noted to be a “grid automation protection and control relay designed for remote control and monitoring, protection, fault indication, power quality analyzing and automation in medium-voltage secondary distribution systems.” ABB-DA requests classification of the protective relay as a finished unit and the classification of the eight individual components that make up the protective relay, described as PCBAs. Specifically, the eight individual components at issue are the HMI module, CPU/signal processing module, power supply board, backplane board, communication module, analog and binary input module, binary input/output module, and sensory input module. ISSUE: Whether the subject protective relay is classifiable as an apparatus for communication of heading 8517, HTSUS, or a programmable controller of heading 8537, HTSUS. What is the tariff classification of the subject PCBAs? LAW AND ANALYSIS: Merchandise imported into the United States is classified under the HTSUSA. 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 (AUSRIs). 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows: 8504 Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof 8517 Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528; parts thereof 8537 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 85.35 or 85.36, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of Chapter 90, and numerical control apparatus, other than switching apparatus of heading 85.17 8538 Parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537 General Rule of Interpretation 2(a) states in pertinent part that: Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. Note 2 to Section XVI, HTSUS, further provides that: Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings; Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517; 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). EN 85.17 states, in relevant part: This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in a wired network or by electromagnetic waves in a wireless network. The signal may be analogue or digital. The networks, which may be interconnected, include telephony, telegraphy, radio-telephony, radio-telegraphy, local and wide area networks. EN 85.37 explains, in relevant part: This heading also covers: … (3) “Programmable controllers” which are digital apparatus using a programmable memory for the storage of instructions for implementing specific functions such as logic, sequencing, timing, counting and arithmetic, to control, through digital or analog input/output modules, various types of machines. * * * * * ABB-DA maintains that the primary function of the subject protective relay is data communication and, as such, should be classified in subheading 8517.62.00, HTSUS, which provides for “Telephone sets. . . .; other apparatus for the transmission or reception of voice, images or other data. . . .: Other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as local or wide area network): Machines for the reception, conversion and transmission or regeneration of voices, images or other data, including switching and routing apparatus.” While ABB-DA maintains that the primary function of the protective relay is to “send, receive, and process data in wired and wireless networks,” it also states that the protective relay facilitates the monitoring and control of power generation and consumption in a Smart Grid-enabled environment. ABB-DA describes the protective relay as “elements of the data communications network that perform a variety of monitoring and control functions over the power grid,” “receive signals from a variety of sensors and monitoring equipment . . . send out control signals,” and whose “central function is the routing of information and control signals throughout a data network that serves to monitor and control the power transmission system.” We are of the view, however, that the primary function of the subject protective relay is to provide control to electrical systems, which is not a telecommunications function. The product literature of different models of the subject protective relay does not describe the subject protective relay as a data telecommunication appliance. For example, ABB-DA’s protective relay 605 Series is noted to perform “feeder protection, motor protection, and current protection.” ABB-DA’s protective relay 615 Series is noted to be a “grid automation protection and control relay designed for remote control and monitoring, protection, fault indication, power quality analyzing and automation in medium-voltage secondary distribution systems.” ABB-DA maintains that the protective relay functions in a similar manner as the articles classified in New York Ruling Letter (“NY”) N254412, dated June 20, 2014, NY N130617, dated December 2, 2010, and NY N084496, dated December 18, 2009. In NY N254412, CBP classified EtherCat I/O terminals in heading 8517, HTSUS. The subject EtherCat I/O terminals were used to facilitate the transfer of data between various electronic devices (sensors and actuators) and a computer which was responsible for the monitoring and control of those components. In NY N130617, the device at issue was an Infi-Net Ethernet Transfer (“IET”) Module that was designed to handle all communication with a host computer. The IET Module received data from the controllers over an open system advanced communication highway, then sorted, organized, and stored data in a database. When the host computer was ready to process the data, it would issue a command to the IET Module and the IET Module would forward the data as the reply. CBP classified the IET Module under heading 8517, HTSUS. Moreover, in NY N084496, CBP classified a Tendril Translate/Link and a Tendril Relay in subheading 8517.62.00, HTSUS. The Tendril Translate/Link was a meter bridge, which collected and received energy consumption data from an Automatic Meter Reading meter and delivered that data to utilities and consumers via a home area network. The Tendril Relay was a device that was noted to enhance the coverage and range of the home area wireless network by receiving, boosting, and retransmitting an incoming signal. The rulings cited by ABB-DA are distinguishable. The devices at issue in NY N254412 were described as facilitating the transfer of data between various electronic devices and a computer whereas the subject protective relay receives signals which it uses to control circuits and not to provide a telecommunications function. Similarly, the IET Module in NY N130617, was designed to “handle all communication with a host computer,” and received data from the controllers of an open advanced data communication highway that it processed and subsequently forwarded. Unlike the subject protective relay, the IET Module in NY N130617 was a data telecommunications device. Similarly in NY N084496, the Tendril Translate Link was described as delivering information to consumers and utilities and the Tendril Relay was noted to enhance coverage in a wireless network by receiving, boosting, and retransmitting a signal. The functions of the Tendril devices in NY N084496 were to transfer data and signals, which is different than the function of the protective relay which receives data to issue control signals, as commanded by the CPU, to perform some action. As a result, the primary function of the devices in NY N254412, NY N130617, and NY N084496 was to perform a telecommunications function whereas the function of the protective relay is to control circuits and provide electrical protection to those circuits as a result of the sensor data it receives. Heading 8537, HTSUS, provides for bases equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90. As the EN to heading 8537, HTSUS, explains, articles of this heading consist of an assembly of apparatus from small switchboards to complex control boards or panels which usually also incorporate meters, transformers, and voltage regulators. The EN to heading 8537, HTSUS, further states that the heading covers “programmable controllers” which use “programmable memory for the storage of instructions for implementing specific functions such as logic, sequencing, timing, counting and arithmetic, to control, through digital or analog input/output modules, various types of machines.” The function of the subject protective relay is to control circuits and provide electrical protection to those circuits. The product literature submitted by ABB-DA attests that the subject protective relay provides electrical protection functions, which include feeder protection, bay control, transformer protection, generator protection, voltage protection, and load-shedding. All of these functions are specific control and protection functions, which specifically meet the heading description of heading 8537, HTSUS. In addition, the subject protective relay is a programmable controller as described in EN 85.37, HTSUS. The instant merchandise consists of both analog, binary input/output and sensory input modules which are specifically described in EN 85.37, HTSUS. The analog, binary input/output, and sensory input modules receive sensor data and issue control signals, as commanded by the CPU to perform some action. The controllers of the protective relay also contain an external control panel, which ranges from a basic front panel and switches/indicators to a complex HMI, where users can physically control and program a device. CBP has previously held that control equipment and apparatus which function to control machinery, apparatus, or equipment, are classifiable in heading 8537, HTSUS. See, e.g., Headquarters Ruling Letter (“HQ”) HQ 085281, dated November 8, 1989 (optimizer system in which dimensions of logs and boards are digitally input to a process controller which makes necessary calculations for optimal method to cut logs, and then instructs the saws how to slice the logs); HQ 950120, dated May 13, 1992 (laser vision system in which controller directs servomotors to move welding apparatus); and HQ 954972, dated January 23, 1994 (brake and steering control unit (BSCU) in which the pilot sends instructions to the BSCU in the form of database signals, which the BSCU processes and transmits to servovalves on each wheel, and sensors on brakes and nose wheel transmit positional data back to the cockpit to insure proper brake function). In HQ H008631, dated March 11, 2010, CBP classified a process control system designed to control the production, distribution, and transmission of electricity in an electrical power plant by monitoring and switching power loads in heading 8537, HTSUS. Moreover, in NY N281443, dated December 19, 2016, CBP classified a universal controller, which consisted of a processing unit, relays, contacts, terminal blocks, and slots for sensor and communication modules, and was designed to monitor and collect sensor data and perform electrical control functions, under heading 8537, HTSUS. In addition, CBP classified similar electrical protection systems in NY N269937, dated November 19, 2015, under heading 8537, HTSUS. The functions of the electrical protection systems in NY N269937 were to monitor vital statistics and electrical systems for certain fault conditions, quality and performance data logging, and provide electrical protection. The electrical protection systems in NY N269937 incorporated a processor module, an input/output module, an analog module and contained relays, fuses, terminal blocks, contacts, and switches that contributed to the intended purpose of electrical protection. In addition, the electrical protective systems received performance data and provided power protection and control of electrical shutdown, which are similar functions performed by the subject protective relay. Similar to the device at issue in NY N269937, we find that the primary function of the subject protective relay is to automatically analyze, control, and protect the production and transmission of electricity. As such, we find that the subject protective relay is properly classified under heading 8537, HTSUS, and is specifically provided for in subheading 8537.10.91, HTSUS. Furthermore, under Note 2(a) to Section XVI, HTSUS, parts that are themselves goods (that is, articles) of any of the headings of Chapter 84 or 85, HTSUS, are properly classified in Chapter 84 or Chapter 85. This is consistent with Additional U.S. Rule of Interpretation (AUSRI) 1(c), which provides that “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” See AUSRI 1(c). Thus, we first examine whether the subject PCBAs are themselves prima facie classifiable as articles of headings in Chapters 84 or 85. The first PCBA at issue the HMI, which is an LCD screen and keypad assembly that acts as a control and input unit for the protective relay. ABB-DA maintains that the HMI should be classified under subheading 8537.10.91, HTSUS, which provides for “Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity . . . For a voltage not exceeding 1,000 V: Other: Other.” Since the HMI is specifically provided for in subheading 8537.10.91, as a control panel, we agree with ABB-DA that the subject HMI is covered by subheading 8537.10.91, HTSUS. The second PCBA is the CPU board that contains the control circuitry which allows for automatic or user operated remote control of the system it is designed to supervise. ABB-DA maintains that all of the decision, monitoring, and control place takes place on the CPU and, as a result, that the CPU should also be classified under subheading 8537.10.91, HTSUS. ABB-DA states that the CPU is imported with memory, a processor, and a pre-programmed Basic Input/Output System. As a result and pursuant to General Rule of Interpretation 2(a), we find that the CPU possesses the essential characteristics of a complete programmable controller and is provided for in subheading 8537.10.91, HTSUS. The third PCBA is the power supply, which is the power supply for the various modules within the protective relay. ABB-DA contends that the power supply should be classified in subheading 8504.40.95, HTSUS, which provides for Electrical transformers, static converters . . . and inductors; parts thereof: Static converters: Other. If the power supply is imported separately, we agree. Therefore, we find that power supply is classified under subheading 8504.40.95, HTSUS. The fourth PCBA is the backplane board, which is fitted with connectors and physically holds and electrically connects the other modules within the unit. ABB-DA suggests that the backplane for the protective relay should be classified under subheading 8517.70.00, HTSUS, as parts of telecommunications apparatus. Notably, ABB-DA states that the backplane “has no control or data communications functions,” and that it is an important component of the protective relay. Because we find that the subject protective relay is not a telecommunications device, we also find that the “parts” to the protective relay are not telecommunications devices and therefore cannot be classified under heading 8517, HTSUS. Instead, we find that the backplane board is specifically described under subheading 8537.10.91, HTSUS. This is consistent with CBP rulings. See HQ 962946, May 1, 2000 (finding that a backplane board that was comprised of connectors, which enabled data to be temporarily stored until controllers within the entire assembly allowed its onward transmission, was classified under subheading 8537.10.90, HTSUS); NY N239877, dated April 9, 2013 (holding that a backplane which was a board which operated as a connector between other boards inside industrial equipment was covered by subheading 8537.10.90, HTSUS); and NY N057186, dated April 22, 2009 (concluding that a backplane assembly that operated as a connector which allowed for electrical connections between printed circuit boards with numerous components for a variety of applications was provided for in subheading 8537.10.90, HTSUS). The fifth PCBA is the communications module. According to ABB-DA, the communications module provides two-way digital communication capability between the protective relay and the outside world, which can include other protective relays, supervisory computers, and any number of devices connected on a Smart Grid network. The communications module serves to interface between the CPU/Signal Processing Module and other apparatus, by converting internal signals into communication packets under specific communications protocol. ABB-DA asserts that the communications module is properly classified in subheading 8517.62.00, HTSUS, which provides for “Telephone sets. . . .; other apparatus for the transmission or reception of voice, images or other data. . . .: Other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as local or wide area network): Machines for the reception, conversion and transmission or regeneration of voices, images or other data, including switching and routing apparatus.” Since the communications module has a variety of communications capabilities under standard Information Technology standards, we find that it is specifically provided for under subheading 8517.62.00, HTSUS. The sixth, seventh, and eighth PCBAs are the analog and binary input modules, the binary input/output modules, and the sensor input modules (“modules”) that receive sensor data from the various connected components and are the interface between the CPU and allows the protective relay to make decisions based on that input data. ABB-DA suggests that the modules should be classified under subheading 8517.62.00, HTSUS. However, the function of the modules is not to transmit voice, images, or other data, but to issue control signals to perform some action. Therefore, classification under subheading 8517.62.00, HTSUS, is not supported. In addition, the subject modules cannot be used by themselves. In order to function, they must be incorporated into the protective relay and connected to other components. As such, the modules cannot, in their condition as imported, be classified as articles of Chapter 85. The courts have considered the nature of “parts” under the HTSUS, and two distinct though not inconsistent tests have resulted. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, (“Bauerhin”) 110 F.3d 774. The first, articulated in United States v. Willoughby Camera Stores, (“Willoughby Camera”) 21 C.C.P.A. 322 (1933) requires a determination of whether the imported item is “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby Camera, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo, (“Pompeo”) 43 C.C.P.A. 9 (1955), states that “an imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Id. As stated above, the modules receive sensor data from the various connected components, which allow the protective relay to make decisions based on that input data. The protective relay to which the modules are connected would not function without the subject modules. The modules contribute to the overall functionality of the protective relay and have no other purpose or use. Therefore, the subject modules are “parts” of the protective relay. Under Note 2(b) to Section XVI, parts which are suitable for use solely or principally with a particular kind of machine are to be classified with machines of that kind. Since the modules are suitable for use solely or principally with the protective relay, they are classified as parts of machines of the same kind as the protective relay. Therefore, since we find that the protective relay is classified in heading 8537, HTSUS, the subject modules are properly classified as in subheading 8538.90.30, HTSUS, as other parts of an apparatus of heading 8537, HTSUS. This conclusion is consistent with many prior CBP rulings that have classified PCBAs as parts of the machine for which they are intended. See, e.g., HQ 967519, dated July 11, 2006 (classifying a controller module that provided communication functions for a process control system and control between field devices and other nodes on a control network as parts in subheading 8538.90.80, HTSUS); HQ H079395, dated October 26, 2009 (classifying an expansion module kit for microcontrollers containing a socket board, three adapter (routing) boards and an AVR microcontroller in subheading 8473.30.11, HTSUS, as parts of machines of heading 8471, HTSUS); HQ H071900, dated December 29, 2010 (classifying a printed circuit board assembly that was a component of a siren system and includes an amplifier, an embedded modem, an analog to digital converter, a serial port interface, a wireless and hardwired communication interface and a sine wave tone generator as a part of a signaling apparatus in subheading 8531.90.30, HTSUS). HOLDING: By application of GRI 1, the subject protective relay, the HMI, and the backplane board are classified in heading 8537, HTSUS. By application of GRI 6, they are specifically provided for in subheading 8537.10.91, HTSUS, as “Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90, and numerical control apparatus, other than switching apparatus of heading 8517: For a voltage not exceeding 1,000 V: Other: Other.” The column one, general rate of duty is 2.7% ad valorem. By application of GRIs 1 (Note 2(a) to Section XVI) and 2(a), the subject the CPU is classified in heading 8537, HTSUS. It is are specifically provided for in subheading 8537.10.91, HTSUS, as “Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90, and numerical control apparatus, other than switching apparatus of heading 8517: For a voltage not exceeding 1,000 V: Other: Other.” The column one, general rate of duty is 2.7% ad valorem. By application of GRI 1 (Note 2(a) to Section XVI), the subject power supply is classified in heading 8504, HTSUS. By application of GRI 6, it is specifically provided for in subheading 8504.40.95, HTSUS, as “Electrical transformer, static converters (for example, rectifiers) and inductors; parts thereof: Static converters: Other.” The column one, general rate of duty is .7% ad valorem. By application of GRI 1 (Note 2(a) to Section XVI), the subject communication module is classified in heading 8517, HTSUS. By application of GRI 6, it is specifically provided for in subheading 8517.62.00, HTSUS, as “Telephone sets. . . .; other apparatus for the transmission or reception of voice, images or other data. . . .: Other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as local or wide area network): Machines for the reception, conversion and transmission or regeneration of voices, images or other data, including switching and routing apparatus.” The column one, general rate of duty is Free. By application of GRI 1 (Note 2(b) to Section XVI), the subject analog and binary input modules, binary input/output modules, and sensor input modules are classified in heading 8538, HTSUS. By application of GRI 6, they are specifically provided for in subheading 8538.90.30, HTSUS, as “Parts suitable for use solely or principally with the apparatus of heating 8535, 8536, or 8537: Other: Other. The column one, general rate of duty is 3.5% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. Sixty days from the date of this decision, the Office of Trade, Regulations and Rulings, will make this decision available for CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of publication. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division


RF Generator; Application for Further Review of Protest Number 5501-17-100601; machine; semiconductor wafer plasma processing; physical vapor deposition. The subject articles are described as RF Generators (408 Volt AC, 40.63 MHz, 7kW) under Applied Materials part number 0190-43214. Seven entries of the subject merchandise were made at the Port of Dallas/Ft. Worth between September 2, 2016, and October 28, 2016, and liquidated between July 14, 2017, and September 8, 2017, under subheading 8486.90, HTSUS, which provides for parts and accessories of machinery or apparatus of a kind used solely or principally for the manufacture of semiconductor devices. Protestant argues that the subject merchandise is properly classified in subheading 8486.20, HTSUS, which provides for machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits. As a general matter, RF Generators produce RF power for specific uses. The subject RF Generators are manufactured by Advanced Energy Industries, Inc. and are designed to Applied Materials' specifications for use in plasma physical vapor deposition (PVD) semiconductor wafer processes. The RF Generators function by using alternating current (AC) from a public power source to generate and amplify electromagnetic radio waves to a specified power level. The RF waves are delivered by coaxial cable to an impedance RF Match Network (designed to convert or match the impedence of the plasma processing chamber to 50 Oh

semiconductor manufacturing equipment parts

This matter is protestable under 19 U.S.C. 1514(a)(2) as a decision on classification. The protest was timely filed on September 25, 2017, within 180 days of liquidation, pursuant, to 19 U.S.C. 1514(c)(3). Further review of Protest 5501-17-100601 is properly accorded to Protestant pursuant to 19 CFR §§ 174.24(c) and 174.25, as this protest involves matters previously ruled upon by the Commissioner of CBP 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. In this regard, Protestant submits that the U.S. Court of International Trade (CIT) in ENI Technology Inc. v. United States, 641 F. Supp. 2d 1337 (CIT 2009), based classification of RF Generators of a kind substantially similar to those at issue on a version of the Harmonized System (HS) that pre-dated the February, 2007, amendment to the HS that created new heading 8486, HTSUS, that prima facie provides for the subject merchandise. Accordingly, ENI Technology Inc. v. United States is not precedential for purposes of the subject commodity. The AFR was forwarded for our consideration. Classification under the HTSUS is in accordance


HQ H296912 August 29, 2018 CLA-2 OT:RR:CTF:EMAIN: H296912 PF CATEGORY: Classification TARIFF NO.: 8523.51.00 David W. Fong SK Hynix America Incorporated 3101 North First Street, Building B San Jose, CA 95134 RE: Tariff classification of solid-state drives Dear Mr. Fong: This is in reply to your request, submitted on April 11, 2018, on behalf of SK Hynix America Incorporated (“SK Hynix”), seeking a prospective ruling from U.S. Customs and Border Protection (“CBP”) on the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of two models of a solid-state drive (“SSDs”). In reaching our determination, we have considered information presented in your April 11, 2018 request and a separate email submission dated July 24, 2018. FACTS: The models of the subject SSDs under consideration are a SK Hynix SL308 and SC300A, which contain NAND flash memory circuit assemblies that are housed in a case and function as data storage drives. After importation, the SSDs are incorporated into other devices, such as servers, laptops, desk tops, and tablets. The SSDs are solid-state non-volatile storage devices that are designed to accept, store, or deliver electronic data using flash memory semiconductors. They contain a connecting socket (for use in connecting to a host device) which is incorporated in a housing and includes a flash controller in the form of an integrated circuit. The SSDs do not contain a hard disk drive or other non-SSD storage medium. Product literature for the SK Hynix SSD notes that the SL308 has a storage density of 120, 150, and 500 Gigabytes (“GB”) and that the SK Hynix SSD SC300A has a storage density of 128, 256, and 512GB. On the SK Hynix website, the SSDs are described as “multi-tasking product[s] boasting fast booting in various PCs, excellent durability, and outstanding speed.” SK Hynix markets their SSDs to individual consumers, businesses, schools, and universities. ISSUE: Whether the subject SSDs are classified as units of automatic data processing machines of heading 8471, HTSUS, or as solid-state non-volatile storage devices of heading 8523, HTSUS. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in their appropriate order. The HTSUS headings under consideration are the following: 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: 8471.70.60 Not assembled in cabinets for placing on a table, desk, wall, floor or similar place. 8523 Discs, tapes, solid-state non-volatile 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 5 to Chapter 85, HTSUS, provides, in pertinent part: For the purposes of heading 8523: “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 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. See T.D. 89-90, 54 Fed. Reg. 35127 (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 your ruling request, you seek clarification as to whether the subject SSDs are classified in heading 8471, HTSUS or in heading 8523, HTSUS. To be classified under heading 8471, HSTUS, as a “unit thereof” of an automatic data processing machine, the subject SSDs must satisfy Note 5(C) to Chapter 84, HTSUS. The subject SSDs are storage devices which are designed for physical incorporation into an ADP machine and have a connecting socket that directly connects to an ADP machine. 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 SSDs employ (NAND) Flash memory, which is based on semiconductor microchip technology rather than magnetic disks. The SSDs 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 SSDs are flash memory storage devices designed to be incorporated into laptops, desktops, tablets, 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. Product literature for the SK Hynix SL308 SSD notes that it has a storage density of 120, 150, and 500 GB and that the SK Hynix SC300A SSD has a storage density of 128, 256, and 512GB. On the SK Hynix website, the SSDs are described as “multi-tasking product[s] boasting fast booting in various PCs, excellent durability, and outstanding speed.” SK Hynix markets their SSDs to individual consumers, businesses, schools, and universities. The SSDs are designed to be inserted directly into an ADP. Based on the Carborundum factors and the information above, we find that the principal use of the subject SSDs are as units of 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 fall under the scope of heading 8471, HTSUS. Specifically, the products are classifiable under subheading 8471.70.60, HTSUS, which provides for: “Automatic data processing machines and units thereof; …: Storage units: Other storage units: Not assembled in cabinets for placing on a table, desk, wall, floor or similar place.” With respect to heading 8523, HTSUS, in order to be classified as a “solid state non-volatile storage device,” the products must satisfy Note 5(a) to Chapter 85, HTSUS. This Note lists four criteria, specifically: 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. 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. The subject SSDs are devices that store or transmit data. The SK Hynix SL308 has a storage density of up to 500 GB and the SK Hynix SC300A has a storage density of up to 512GB. The SSDs also contain a connecting socket for use in connecting to a host device, such as a server, laptop, or desktop. The SSDs have flash memory in the same housing as the connecting socket. The flash memory is in the form of an integrated circuit. As a result, the subject SSDs meet the terms of Note 5(a) to Chapter 85, HTSUS, and are properly classified in heading 8523, HTSUS, as “solid-state non-volatile storage devices.” Because the subject SSDs are prima facie classifiable under both headings 8471 and 8523, 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 subject SSDs 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). EN 85.23 also provides that “semiconductor media” of subheading 8523, HTSUS, includes products that contain “one or more electronic integrated circuits.” See EN 85.23(C). The subject SSDs constitute “media” because they are data storage devices that store or transmit data. The subject SSDs also meet the terms of “semiconductor media” because they contain one or more electronic integrated circuits. Specifically, the SSDs are comprised of a flash controller in the form of an integrated circuit that incorporates semiconductor technology. As such, the SSDs are specifically classified under subheading 8523.51, HTSUS, which provides for “[S]olid state non-volatile storage devices . . . Semiconductor media: solid-state non-volatile storage devices.” Our decision is consistent with CBP’s prior treatment of SSDs. In New York Ruling Letter (“NY”) N264697, dated May 29, 2015, CBP classified a standalone SSD which was a flash memory storage device in subheading 8523.51, HTSUS. The SSD contained flash memory components housed in a case that was ready for installation into various types of other host devices, which required data storage, such as computers, laptops, and digital video recorders. CBP determined that the SSD was a solid-state non-volatile storage device that was designed to store electronic data using a flash memory semiconductor. The SSD also contained a connecting socket incorporated in the same housing and a flash controller in the form of an integrated circuit. The SSD did not contain a processor. As the subject SSDs in this case are similar to the SSD in NY N264697, they are classified in subheading 8523.51, HTSUS. HOLDING: By application of GRI 1, the subject SSDs are classified in heading 8523, HTSUS, and specifically in subheading 8523.51, HTSUS, which provides for “Discs, tapes, solid-state non-volatile 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 2018 column one, general rate of duty for merchandise of this subheading is free. Duty rates are subject to change. The text of the most recent HTSUS and the accompany duty rates are provided at www.usitc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Gregory Connor, Branch Chief Electronics, Machinery, Automotive, and International Nomenclature Branch