In NY I87349, we described the merchandise as follows: The Mitsui pellicles consist of a membrane of nitrocellulose, modified cellulose, or fluoropolymer mounted on a frame of aluminum alloy. Pellicles provide a high level of cleanliness and have excellent optical properties. Pellicles are used with the photomask in a photolithography process to transfer reduced-sized patterns from the photomask to sensitized semiconductor wafers and materials. The pellicles are applied to photomasks during the lithography process in order to protect the photomask. In addition to protecting the photomask, pellicles transmit more than 99 percent of light from the photolithography process in a uniform way. We have since received information indicating that the pellicles at issue do not reflect light. They merely transmit the light that shines through them. According to the Semiconductor Equipment and Materials International (“SEMI”) International Standards: Compilation of Terms (available at www.semi.org, updated November 2008), a “pellicle” is: [A] thin, optically transparent film typically of a polymer, attached to and supported by a frame, and attached to a photomask [an opaque plate with holes that contains the patterns to be reproduced on a substrate] (also known as a “reticle”). Its purpose is to seal out contaminants and reduce the printed effects caused by contamination in the image plane of an optical exposure system with a minimum decrease in the quality of optical transmission. Technical information on pellicles, available on the website of a leading supplier (www.mliusa.com/technology-paper.htm), explains that there are two types: “soft” pellicles, made of transparent fluorocarbon-based polymers, and “hard” pellicles, made of quartz glass. The pellicles at issue are soft pellicles.

Revocation of New York Ruling Letter I87349

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 2 through 6 may then be applied in order. The 2009 HTSUS provisions under consideration are as follows: 8486 Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; machines and apparatus specified in Note 9 (C) to this chapter; parts and accessories: 8486.90.00 Parts and accessories … 9002 Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; parts and accessories thereof: Other: Other: Other … Legal Note 2 to Section XVI, HTSUS, provides, in relevant part: Subject to note 1 to this section, note 1 to chapter 84 and 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 heading of Chapter 84 or 85 (other than headings 84.09, 84.31, 84.48, 84.66, 84.73, 84.87, 85.03, 85.22, 85.29, 85.38 and 85.48) 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 are to be classified in heading 8517. 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 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 ENs to heading 8486, HTSUS, provide, in part: This heading covers machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays … * * * (B) MACHINES AND APPARATUS FOR THE MANUFACTURE OF SEMICONDUCTOR DEVICES OR OF ELECTRONIC INTEGRATED CIRCUITS This heading covers machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits such as: * * * Lithography equipment, which transfer the circuit designs to the photoresist-coated surface of the semiconductor wafer such as: Equipment for exposing the photoresist coated wafer with the circuit design (or a part thereof): (i) Using a mask or reticle and exposing the photoresist to light (generally ultraviolet) or, in some instances, X-rays: Contact printers … Proximity aligners … Scanning aligners … Step and repeat aligners, which use projection techniques to expose the wafer a portion at a time. Exposure can be by reduction from the mask to the wafer or 1:1. Enhancements include the use of an excimer laser. * * * (E) PARTS AND ACCESSORIES Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading includes parts and accessories for the machines and apparatus of this heading. Parts and accessories falling in this heading thus include, inter alia, work or tool holders and other special attachments which are solely or principally used for the machines and apparatus of this heading. The ENs to heading 9002, HTSUS, provide, in part: With the exception of ophthalmic lenses (which when mounted constitute spectacles, lorgnettes or the like of heading 90.04), this heading covers the articles referred to in Items (B), (C) and (D) of the Explanatory Note to heading 90.01 when in a permanent mounting (viz., fitted in a support or frame, etc.) suitable for fitting to an apparatus or instrument. The ENs to heading 9001, HTSUS, provide, in part: This heading covers: (D) Optical elements of any material other than glass, whether or not optically worked, not permanently mounted … Optical elements are manufactured in such a way that they produce a required optical effect. An optical element does more than merely allow light (visible, ultraviolet or infrared) to pass through it, rather the passage of light must be altered in some way, for example, by being reflected, attenuated, filtered, diffracted, collimated, etc. (Emphasis added). * * * Some of the optical elements listed above (lenses, prisms, etc.) may be colored, or coated with an anti reflection film of cryolite, calcium or magnesium fluoride, etc. This does not affect their classification in this heading. Heading 9002, HTSUS, provides in part for “Optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus ….” CBP has held, consistent with EN 90.01 (incorporated by reference into EN 90.02), that an “optical element” is one that produces an optical effect. See, e.g., HQ 966475, dated October 23, 2003. That is, it must “[do] more than merely allow light (visible, ultraviolet or infrared) to pass through it, rather, the passage of light must be altered in some way, for example, by being reflected, attenuated, filtered, diffracted, collimated, etc.” See EN 90.01. See also NY N049895, dated February 10, 2009. The pellicles at issue do not alter (e.g., reflect, attenuate, filter, diffract or collimate) the light that passes through them. To the contrary, they are intentionally designed to reduce their reflectivity and to optimize light transmission. As such, we conclude that they are not “optical elements” of heading 9002, HTSUS. Heading 8486, HTSUS, provides, in relevant part, for: “Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; … parts and accessories.” It is undisputed that the subject pellicles are “parts” of a kind used solely with lithography equipment which transfer integrated circuit designs to the photoresist-coated surface of a semiconductor wafer. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774, 777 (Fed. Cir. 1997) (“[A]n imported item dedicated solely for use with another article is a ‘part' of that article within the meaning of the HTSUS”). Specifically, they are parts of step-and-repeat aligners. See EN 84.86 (B)(4)(b)(i)(d). Note 2(b) to Section XVI, HTSUS, provides that parts which are not included in any of the headings of Chapters 84 or 85 (except for some headings not relevant here), and are suitable for use solely or principally with a particular kind of machine, are classified with that machine. The pellicles at issue are not specifically described in either Chapter. As such, we find that they are classified under heading 8486, in subheading 8486.90, HTSUS, as parts of machines and apparatus of a kind used solely for the manufacture of integrated circuits.


Revocation of New York Ruling Letter G88540, dated April 12, 2001; Classification of Pellicles In NY G88540, we described the merchandise as follows: The pellicle is an ultra-thin piece of plastic film that is mounted on a plastic frame. The plastic film is composed of modified fluoropolymer, Teflon or nitrocellulose. The pellicle covers a photomask to provide a contaminant-free environment for the photomask. The photomask is a quartz or glass plate containing precision images of integrated circuits. The photomask and the pellicle are used in a photolithography process to transfer reduced-sized patterns from the photomask to sensitized semiconductor wafers and materials. Pellicles have optical properties that allow the pellicles to transmit and to reflect light. The main optical function of the pellicle is to transmit light. Pellicles are manufactured to various optical wavelengths required for semiconductor manufacturing. As examples, the G-line operates at 436 nanometers and the H-line operates at 365 nanometers. The pellicle is used in an optical application in the photolithography process by transmitting light from the stepper through the photomask onto the sensitized semiconductor wafer. We have since received information indicating that the pellicles at issue do not reflect light. They merely transmit the light that shines through them. According to the Semiconductor Equipment and Materials International (“SEMI”) International Standards: Compilation of Terms (availabl

semiconductor manufacturing equipment parts

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 2 through 6 may then be applied in order. The 2009 HTSUS provisions under consideration are as follows: 8486 Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; machines and apparatus specified in Note 9 (C) to this chapter; parts and accessories: 8486.90.00 Parts and accessories … 9002 Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; parts and accessories thereof: Other: Other: Other … Legal Note 2 to Section XVI, HTSUS, provides, in relevant part: Subject to note 1 to this


Application for Further Review of Protest No: 4198-07-100247; Classification of Agilent Model 86100C Infinium DCA-J Wide Bandwidth Oscilloscope


The instant flash tuner is designed to work with Powertrain Control Modules (PCM) to help the user diagnose potential problems, adjust certain performance settings, and record performance data. It features 128MB of total memory, internal PCB assembly, LCD display, indicator lights, and directional buttons housed in plastic housing with a push/scroll jog wheel. The product is fitted with a USB plug and other connectors that allow it to be mounted in a Ford vehicle. For tuning purposes, the user may use one of the three pre-loaded performance “tunes”, which adjust the vehicle's parameters to increase horsepower or torque, or the pre-loaded fuel economy “tune”, which adjusts the vehicle's parameters to maximize fuel efficiency. The user may also download custom “tunes” onto the Livewire flash device through an authorized SCT dealer or from the SCT website. When the flash tuner uploads the selected “tune” onto the PCM, it backs up the factory settings, thus allowing the user restore the PCM to its original configuration whenever desired. The flash tuner also reads and stores performance data from the PCM. This allows the user to keep track of the vehicle performance metrics such as horsepower, torque, RPM, quarter-mile elapsed time, and zero-to-sixty time. For diagnostic purposes, the flash tuner is capable of reading, resetting and clearing diagnostic trouble codes that emanate from the PCM. The codes correspond with electronic components throughout the motor vehicle and provide the user with clues as to what may be causing problems with the motor vehicle as he/she communicates with the vehicle manufacturer's service department.

Tariff classification of the SCT Livewire flash device

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 2 through 6 may then be applied in order. The HTSUS provisions under consideration 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: * * * 9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Initially, you argue that the Livewire flash tuner is properly classifiable as an automatic data processing (ADP) machine of heading 8471, HTSUS. During our phone conference and in your second written submission, you concurred with our position that the merchandise does not meet the terms of heading 8471, HTSUS, as it is not freely programmed in accordance with the requirements of the user as required by Note 5(A)(ii) to Chapter 84, HTSUS. However, in your second written submission, you argue that the merchandise is classified under heading 8517, HTSUS, as other apparatus for the transmission of other data for communication in a wired or wireless network. In so doing, you cite to three rulings that pertain to merchandise that involve the transmission of data within motor vehicles. In New York Ruling Letter (NY) N094136, dated February 25, 2010, CBP classified the “Key 2 Safe Driving Activator” in heading 8517, HTSUS. It is stated in the ruling that the product did not perform a diagnostic function, but received data from an OBD-II port in the vehicle and then transmitted that data to a cell phone within the vehicle via Bluetooth. In NY N043829, dated December 5, 2008, the “Smart Handle Assembly” was classified under heading 8517, HTSUS. The product functioned as door handle to a vehicle by means of the user pressing the frequency operated button (FOB), which relayed information to the electronic control unit in the vehicle. Lastly, you cite to Headquarters Ruling Letter (HQ) W967550, dated January 28, 2008. In that ruling, the N93 electrical routing device was also classified under heading 8517, HTSUS. The device was for the transmission of data between various control area networks for testing, measuring and control applications between systems and the vehicle. Note 1(m) to Section XVI, HTSUS, excludes “articles of Chapter 90” from classification in Section XVI. Accordingly, if the instant Livewire flash tuner is prima facie classifiable under heading 9031, HTSUS, it is excluded from classification in heading 8517, HTSUS. Heading 9031, HTSUS, provides for measuring or checking instruments, appliances and machines not specified or included elsewhere in chapter 90, HTSUS. CBP has consistently held that diagnostic devices used for retrieving trouble codes from the vehicle PCM are provided for in heading 9031, HTSUS. See NY F81576, dated February 2, 2000, NY R05134, dated November 20, 2006, and NY N019301, dated November 28, 2007. Like the instant Livewire flash tuner, all of the devices in the preceding rulings provide the user with the trouble codes necessary to diagnose potential problems emanating from the vehicle's powertrain. They can also reset these trouble codes. The “Modic III” mobile diagnostic computer, subject to NY F81576, is also capable of storing and conveying historical performance-related data. It analyzes data from the vehicle PCM and compares it to factory-established norms of each vehicle parameter. The device is updated to include norms for new models of vehicles by downloading these norms by CD-ROM from the factory. In the event that a particular vehicle performed outside of the factory-established norms, the “Modic III” alerts mechanics to the discrepancy and suggest adjustments to the motor vehicle to bring it within the appropriate range. The instant Livewire differs from the above-described diagnostic tools in the sense that in addition to the data gathering and reading functions described above, it is capable of storing and transferring different PCM “tunes” or programs, which would adjust the factory-established PCM settings for a given motor vehicle. In ascertaining whether the merchandise meets the terms of heading 9031, HTSUS, we note that Harmonized Commodity Description and Coding System Explanatory Note (EN) 90.31(I), which describes the scope of the phrase “Measuring or checking instruments, appliances and machines”, states, in pertinent part: These include: * * * (4) Apparatus for testing and regulating vehicle motors, for checking all parts of the ignition system (coils, sparking plugs, condensers, batteries, etc.), for ascertaining the best carburetor setting (by analyzing exhaust gases), or for measuring the compression in the cylinders. (Emphasis in original). Like the aforementioned diagnostic devices and computers, the Livewire is designed to provide the user with information contained in the vehicle PCM with respect to trouble codes and performance metrics. That the instant merchandise allows the user to make specific changes to the PCM in order to regulate the vehicle motor according to his or her performance preferences does not exclude the merchandise from the scope of heading 9031, HTSUS. On the contrary, “regulating vehicle motors” is a specifically included function of merchandise classified in the heading, as indicated by EN 90.31(I)(4). Insofar as the Livewire flash tuner meets the terms of heading 9031, HTSUS, it is excluded from classification under heading 8517, HTSUS, by Note 1(m) to Chapter Section XVI, HTSUS. Hence, NY N094137, NY N043829, and HQ W967550 are inapplicable to the present case as classification in Chapter 90, HTSUS, was not at issue.


Yokogawa, the importer of record, describes the merchandise as paperless recorders (Model Nos. MV2048-1-4-2-1-1D/A2, FX112-4-2/C3), pen recorders (Model Nos. 436101-2, 436101-2/A1, 436102/2/P1, 436103-2, 436104-2, 436104-2/A2, SR10000, and SR10002-2) and dot recorders (Model Nos. 436-106-2, 436106-2/C-7). The data recorders are free-standing machines which are connected to sensors on industrial processing equipment. The sensors send electrical signals to the data recorders. The data recorders translate these signals into readable data which describes the operating status of the equipment. The sensors can send information relating to temperature, pressure, flow and other measurements. The data recorder brochures indicate that they can record data for a variety of industrial processes, including water purification equipment, ceramic processing and the sterilization of pharmaceuticals and foods. The pen and dot recorders provide paper printouts of the industrial equipment's operating status. The paperless recorder displays data on its monitor and can store data on its internal drive. The protest at issue involves four entries of data recorders entered between February 6, 2009 and February 11, 2009, under subheading 9030.84.00, HTSUS, which provides in pertinent part for “…other instruments and apparatus for measuring or checking electrical quantities…: [o]ther instruments and apparatus: [o]ther, with a recording device.” The Port of Atlanta (the Port) liquidated the four entries between December 18, 2009 and December 28, 2009, under subheading 9033.00.00, HTSUS, which provides for “[p]arts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.” Yokogawa filed its protest on February 1, 2010, claiming that the correct classification for data recorders is under subheading 9030.84.00, HTSUS, or in the alternative, 9031.80.80, HTSUS. ISSUES: Whether the data recorders are classifiable under subheading 9030.84.00, HTSUS, 9031.80.80, HTSUS, or 9033.00.00, HTSUS?

Application for Further Review of Protest No. 1704-10-100023

Initially, we note that 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 for entries made on or after February 6, 2009. AFR of Protest No. 1704-10-100023 is properly accorded to Yokogawa pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with rulings of the Commissioner of Customs or his designee with respect to the same or substantially similar merchandise. Specifically, Yokogawa alleged that the Port's decision conflicts with U.S. Customs and Border Protection (CBP) Headquarters Ruling Letters (HQ) 089391, dated February 6, 1992, and HQ 961096, dated June 15, 1998. 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 2 through 6 may then be applied in order. The 2009 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. * * * Yokogawa entered the data recorders under heading 9030, HTSUS, which provides for “…other instruments and apparatus for measuring or checking electrical quantities.” The tariff term “checking” is not defined by the HTSUS. Relying on the common meaning of the term, the U.S. Court of Customs and Patent Appeals (CCPA) (predecessor to the U.S. Court of Appeals for the Federal Circuit) has defined the term “check” as “to inspect and ascertain the condition of [a thing].” United States v. Corning Glass Works, 66 CCPA 25, 27 (1978) (citing Webster's Third New International Dictionary 381 (1971)). The CCPA further stated that “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Id. at 25. The data recorders display information about the operating status of industrial equipment for inspection purposes. The data recorders therefore fall under the definition of checking instruments. Additionally, the data recorders display electrical quantity data such as voltage, current, resistance or power. However, the data recorders can also display data relating to steam, temperature, pressure and other processing factors. Given that the data recorders are checking instruments for more than just electrical quantities, they are precluded from heading 9030, HTSUS. CBP has classified independent and free-standing data recorders under heading 9031, HTSUS, which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter.” See HQ 089391, dated February 6, 1992 and HQ 961096, dated June 15, 1998. Applying GRI 1, data recorders fall squarely within the common meaning of the term “checking instruments.” Therefore, the subject data recorders are classifiable under heading 9031, HTSUS. The Port liquidated the four entries under heading 9033, HTSUS, which provides for “Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.” In NY 861163, dated April 5, 1991, CBP classified digital strip chart recorders designed to be component equipment for larger instruments under heading 9033, HTSUS. These digital strip chart recorders would be installed in instruments such as electrocardiographs, thermographs, dataloggers and small text terminals. Once installed, these chart recorders would provide data printouts of information supplied by the larger instrument. In HQ 952499, dated March 26, 1993 and in NY H80308, dated June 5, 2001, CBP classified components of data recorders under heading 9033, HTSUS. However, Note 2 to Chapter 90 states that “…parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules: (a) Parts and accessories which are goods included in any of the headings of this chapter . . . are in all cases to be classified in their respective headings.” Therefore, a part or accessory of a machine which is described by a heading must be classified in that heading rather than as a part or accessory of the larger machine. Even if the subject data recorders are parts or accessories of machines in Chapter 90, they are also classified under heading 9031, HTSUS, as checking instruments. By application of Note 2 to Chapter 90, parts and accessories included in a heading of Chapter 90 must be classified in that heading. The subject data recorders are included in heading 9031, HTSUS. As a result, they should be classified as checking instruments rather than as parts and accessories of a larger machine. To the extent that any prior rulings conflict with this decision, CBP will initiate a 19 U.S.C. § 1625(c) revocation process to revoke them.


HQ H121540 November 2, 2011 CLA-2 OT:RR:CTF:TCM H121540 DSR CATEGORY: Classification TARIFF NO.: 8504.40.95 Port Director, San Diego U.S. Customs and Border Protection 610 W. Ash Street Suite 1005 San Diego, CA 92101 RE: Application for Further Review of Protest No. 2506-10-100041; LED drivers Dear Port Director: This is in response to an Application for Further Review (AFR) of Protest No. 2506-10-100041, made on behalf of Philips Lighting Electronics, North America (hereinafter “Protestant“) against the U.S. Customs and Border Protection (CBP) decision under the Harmonized Tariff Schedule of the United States (HTSUS) on the classification of light emitting diode (LED) drivers. The subject devices are identified as “Xitanium LED Drivers” for 12 volt (V) and 24V direct current (DC) LED systems. FACTS: According to Protestant, the subject drivers are designed to tolerate sustained open circuits and short circuit output conditions while delivering constant current to high power LEDs and to prevent transients of current from damaging the LEDs. The drivers dissipate power in delivering that constant current to connected LEDs, which causes the case temperatures of the drivers to rise. Whenever the case temperatures of the drivers exceed a specified thermal protection standard, the drivers reduce output power to connected LEDs. The drivers achieve this by converting 120 - 277 volts of alternating current (AC) to varying voltage levels of DC. The DC voltage levels depend upon the desired output current and the number of LEDs used in the load. The output power provided by the drivers is specified on the product labels and ranges from 12 watts to 150 watts (depending upon the model. Protestant has supplied the following representative mechanical drawing of the drivers as imported (appearing inside of the dotted lines). When imported, the drivers are not connected to electrical power sources or to an LED array: The functions of the illustrated components are as follows: EMI (electromagnetic interference) Filter and Rectifier: The EMI filter consists of a network of inductors and capacitors that limit the high frequency components injected into input line. The rectifier stage converts the AC line input into a rectified sinusoidal waveform. This rectification is necessary to create a constant DC voltage via the boost power circuit. Boost Power Circuit: The boost power circuit converts the rectified sinusoidal waveform to a fixed, regulated DC voltage. In addition, the boost power circuit also ensures that the current drawn from the rectifier stage is in phase with the voltage. This ensures that the driver operates close to unity power factor. A power factor correction controller is used to control the switches of the boost converter to achieve the aforementioned two functions. PWM (pulse width modulation) Half-Bridge Power Stage and Output EMI Filter: The PWM half-bridge power stage converts the DC voltage (from the boost power circuit output) to a high-frequency pulsating signal. The width of the pulses are determined by the PWM half-bridge control stage based on the feedback from the output current control, output voltage control and the module temperature control stages. The high-frequency pulsating signal is fed to the primary side of an isolation transformer. The secondary signal is rectified and passed through a high-frequency filter to obtain the desired direct current for the LED loads. Output Current Control; Output Voltage Control; Module Temperature Control: This block provides a feedback signal to the half-bridge PWM controller to regulate the output current or voltage of the LED electronic driver to a certain value. The selection of which control loop dominates over the other depends on the operating condition of the LED load. Viper Power Supply: This block provides a regulated voltage to the boost power circuit and the PWM half-bridge stages. Fan Power Supply: This block provides a regulated voltage to the fan on the LED module. Under normal operation, the fan power supply is disabled. When the temperature of the LED module exceeds a certain threshold, the fan power supply is turned on. Dimming Interface: This block provides an interface between the dimming signal and the output current controller of the LED driver. Based on the dimming signal, the current reference is adjusted to provide the desired output current. The drivers were entered on February 3, 2010, and liquidated on April 16, 2010, under subheading 8504.40.95, HTSUS, which provides for “Static converters: Other.” Protestant claims that the proper classification of the devices is either subheading 8541.50.00 or subheading 8541.90.00, HTSUS, which provide for “Other semiconductor devices,” and “Other semiconductor devices: Parts,” respectively. The subject protest was filed on July 21, 2010. ISSUE: Whether the merchandise is classified under subheading 8504.40.95, HTSUS, as rectifiers; subheading 8541.50.00, HTSUS, which provides for other semiconductor devices; or subheading 8541.90.00, HTSUS, as parts of other semiconductor devices. LAW AND ANALYSIS: Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and duty assessment. The entry was liquidated on April 16, 2010, and the protest was filed on July 21, 2010 - thus the protest was timely filed pursuant to 19 U.S.C. 1514(c)(3)(B). Further review is properly accorded to the protest pursuant to 19 C.F.R. § 174.24(a). Specifically, Protestant alleges that the decision against which the protest was filed is inconsistent with prior rulings issued by the Commissioner of CBP, or his designee. 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 based on 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. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized.  The ENs, although neither dispositive nor 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 HTSUS (2010) provisions under consideration in this case are as follows: 8504 Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: * * * 8504.40 Static converters: * * * 8504.40.95 Other. * * * * 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: * * * 8541.50.00 Other semiconductor devices * * * 8541.90.00 Parts. * * * * Legal Note 2 to Chapter 85, HTSUS, states that “[h]eadings 8501 to 8504 do not apply to goods described in heading 8541 [among others].” Legal Note 8 to that same chapter states that “[f]or the classification of [diodes, transistors and similar semiconductor devices], 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.” Furthermore, Legal Note 2 to Section XVI states the following, in pertinent part: Subject to Note 1 to this Section … parts of machines … are to be classified according to the following rules: (a) Parts, which are goods included in any of the headings of Chapter 84 or Chapter 85 … are in all cases to be classified in their respective headings. (b) 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 … are to be classified with the machines of that kind … Finally, EN 85.04(II) states that heading 8504, HTSUS, includes rectifiers, by which alternating current (single or polyphase) is converted to direct current, generally accompanied by a voltage change, and EN 85.04 (Parts) advises the following: Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), parts of goods of this heading are also classified here … However, most of the electrical components of the devices of this heading are to be found in other headings of the Chapter, for example: … (c) Semiconductor diodes, transistors, and thyristors (heading 85.41)” In ABB Power Transmission v. United States, 896 F.Supp. 1279, 29 C.I.T. 1044 (August 4, 1995), the Court of International Trade considered a thyristor module consisting of six thyristors connected in a series, heatsinks, voltage divider circuits and electronic “firing” circuitry mounted on a frame, was classified under heading 8541, HTSUS. The modules were designed to allow the flow of electrical current in one direction and therefore had rectifying capabilities. After importation, the modules were used in HVDC conversion stations to invert DC electricity to AC electricity or to rectify AC electricity to DC electricity. As imported, the modules could not rectify or convert current. In deciding that the modules were classifiable as “other similar semiconductor devices” under subheading 8541.30.00, HTSUS, the court noted that although the modules contained a significant number of components present in addition to thyristors, those components contributed to the clearly defined function of the module’s thyristors as similar semiconductor devices (allowing current to pass in one direction when a controlled pulse initiates conductivity). In accordance with that holding, in HQ 960323, dated May 5, 1997, CBP reclassified bridge rectifier diodes (BRDs) in heading 8541, HTSUS, as well, based upon their functionality as diodes. In light of ABB Power Transmission, we must determine the main function of the subject drivers, i.e., do the components of the drivers “contribute together to a clearly defined function covered by one of the headings in Chapter 84 or 85 ….” Id. at 1283, 1048 (citing EN(4) to Section XVI). Here, a subject driver contains an EMI and rectifier that convert incoming AC into a rectified sinusoidal waveform. The Boost Power Circuit then converts the rectified sinusoidal waveform to a fixed, regulated DC voltage. The PWM half-bridge power stage and the output EMI filter convert the DC voltage (from the boost power circuit output) to a high-frequency pulsating signal. The widths of the pulses are determined by the PWM half-bridge control stage. The high-frequency pulsating signal is fed to the primary side of an isolation transformer. The secondary signal is rectified and passed through a high-frequency filter to obtain the desired voltage/current for the LED loads. All of these functions act in concert to rectify the incoming alternating current to an outgoing direct current that powers the LEDs. In our opinion, the drivers fall squarely within subheading 8504, HTSUS, as rectifiers. Protestant asserts that the drivers are not rectifiers because the bridges in the instant drivers are substantially similar in function to the BRDs of HQ 960323 and the thyristor modules of ABB Power Transmission because the subject drivers “generally rectify auxiliary output by converting DC voltage to a high frequency pulsating signal,” and “the sole purpose of a rectifier [classifiable under heading 8504, HTSUS] is to convert AC to DC.” See Protestant’s March 7, 2011, submission at page 2. Protestant states that the devices are instead classifiable as semiconductor devices under 8541, HTSUS. We disagree. Legal Note 8(a) to Chapter 85, HTSUS, defines “diodes, transistors and similar semiconductor devices” as devices the operation of which depends on variations in resistivity of the application of an electric field.” Protestant posits that while the term “resistivity” is not defined in the HTS, resistivity is “the power or property of resistance” and “electrical resistance measured as a function of a given volume or area.” See Attachment A to Protestant’s AFR, citing Random House Webster’s College Dictionary, 2nd Ed. (1997); see also http:/www.electronics-tutorials.ws/diode/diode_1.html (cited by Protestant) (resistivity can generally be stated as the ratio of the voltage difference across an object/substance to the current flowing through it.) However, the discrete conversion of DC voltage to a high frequency pulsating signal within the drivers is not the subject drivers’ main function. The drivers convert incoming alternating current to direct current before that direct current is then converted to the high frequency pulsating signal - a signal that itself is then rectified to a DC output. The conversion of DC electricity to the pulsating signal is merely an intermediate step in the drivers’ overall function of rectifying AC electricity to DC electricity. That the drivers contain apparatus that regulates voltage of the emerging DC electricity does not alter the fact that the main function of the drivers is to rectify incoming AC electricity to a desired output of DC electricity that is ultimately delivered to the LEDs. Protestant also cites HQ H084604, dated May 3, 2010, in support of its position. In that ruling, CBP reconsidered the classification of a solar module containing, among other things, bypass diodes to protect it from overheating by controlling the direction of the supplied electric current that flowed through the module. We had incorrectly classified the module under heading 8501, HTSUS, as an electrical generator because we believed that its bypass diodes placed it beyond the scope of heading 8541, per an incomplete reading of EN 85.41(B)(2)(i) (“[heading 8541] does not cover panels or modules equipped with elements, however simple (for example, diodes to control the direction of the current) …”). However, HQ H084604 correctly noted that the “elements” described by the preclusion of EN 85.41(B)(2)(i) must also “supply power directly to an external load, such as a motor, an electrolyser (heading 8541).” Therefore, CBP reclassified the solar modules under 8541, HTSUS, because the module’s diodes merely controlled the direction of current and did not supply power to the module. Protestant asserts that although the instant drivers contain a large number of components, none of those components supply power directly to an external load and, therefore, the drivers are similar in function to the solar modules of HQ H080604 and should also be classified in heading 8541, HTSUS. However, as discussed above, the subject drivers act to rectify AC electricity to DC electricity and that functionality is specifically covered by heading 8504, HTSUS, and not by any provision of heading 8541, HTSUS. Finally, Protestant cites to New York Ruling Letter (“NY”) E89000, dated December 22, 1999, in which CBP considered a device identified as the “Frosty Super Bright Red LED lamp.” It is described by Protestant as containing a capacitor, a varistor, lead wires, a silicon insulation sleeve, PC board, body, swivel socket, adapter and candelabra, with an LED array protruding from the housing containing the electrical components. CBP classified the device under subheading 8541.40, HTSUS, as an LED. Drawing upon that ruling, Protestant asserts that the presence of “semiconductor components” in the drivers reveals a significant similarity between the drivers and the device of NY E89000 that compels the classification of the drivers under heading 8541, HTSUS. The semiconductor components are described by Protestant as lead wires and capacitors. The comparison to the device considered in NY E89000 is inapposite. The function of the subject drivers is to rectify electricity and they are not imported with LED arrays. They are clearly not similar to the device of NY E89000. In summary, heading 8541, HTSUS, does not describe the drivers and the drivers are included eo nomine in heading 8504, HTSUS, as static converters. In particular, the drivers are classifiable in subheading 8504.40.95, HTSUS, which provides for “Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: Static converters: Other.” HOLDING: Pursuant to GRI 1, the LED drivers are classifiable under subheading 8504.40.95, HTSUS, which provides for “Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: Static converters: Other.” The column one, general rate of duty at the time of entry was 1.5%. You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website located at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division


The subject impedance matching network is known by the trade name “Mercury”. The device is used to adjust the impedance of the output of an RF generator in order to deliver a matched output to the plasma enhanced chemical vapor deposition machine's plasma chamber. Chemical vapor deposition is a process used to deposit various types of films on the surface of materials such as semiconductor wafers. NY L84849 described the subject merchandise as follows: The RF Match is an impedance matching transformer. The data sheets submitted describes the RF Match as having a power rating of 10 kw (10 kVA). It contains a series of inductor coils, variable capacitors, and an electrical motor, which moves the positions of the variable capacitors, thus changing the value of the variable capacitors. The RF Match is utilized in machinery that deposits dielectric film onto a silicon wafer inside a processing chamber, or load. The dielectric film is activated by radio frequency (RF) energy produced by an RF generator. The change in each variable capacitor's value, which is caused by the electrical motor, allows the output impedance of the RF Match to match the output impedance of the RF generator to that of the attached load (processing chamber) to 50 Ohms. In AEI's submission, the process of chemical vapor deposition and the role of the matching network is described as follows: During a plasma enhanced chemical vapor deposition process, radio frequency power from an RF generator is applied to an electrode that is located in a source unit attached to a deposition chamber. RF voltage causes the gas to ignite and form plasma. The RF generator is typically mounted on a rack that is not attached to the process chamber. Therefore, the RF power must be fed to the chamber by a coax cable. The output impedance of the RF generator as well as the coax cable is of an industry standard impedance of 50 Ohms. In order to maximize the RF power delivery through the coax cable, an Impedance Matching Network is utilized at the process chamber. The matching network will transform the complex impedance of the process chamber, which is connected to its output, to 50 Ohms at its input. This 50 Ohm transformation at the Matching Network input will provide the most efficient RF power transfer from the RF Generator to the process chamber.

NY L84849 revoked by operation of law
classification of an RF Match

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: 8486 Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; machines and apparatus specified in Note 9 (C) to this chapter; parts and accessories: 8486.20.00: Machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits… 8486.90.00 Parts and accessories:. * * * 8504 Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: 8504.40 Static converters: 8504.40.95 Other 8504.90 Parts: 8504.90.95 Other * * * * * Note 9 to Chapter 84 provides as follows: Notes 8 (a) and 8 (b) to Chapter 85 also apply with respect to the expressions "semiconductor devices" and "electronic integrated circuits", respectively, as used in this Note and in heading 8486. However, for the purposes of this Note and of heading 8486, the expression "semiconductor devices" also covers photosensitive semiconductor devices and light emitting diodes. … (C) Heading 8486 also includes machines and apparatus solely or principally of a kind used for : (i) the manufacture or repair of masks and reticles; (ii) assembling semiconductor devices or electronic integrated circuits; and (iii) lifting, handling, loading or unloading of boules, wafers, semiconductor devices, electronic integrated circuits and flat panel displays. Subject to Note 1 to Section XVI and Note 1 to Chapter 841, machines and apparatus answering to the description in heading 8486 are to be classified in that heading and in no other heading of the tariff schedule. * * * Note 1 to Chapter 85 provides, in pertinent part, as follows: This chapter does not cover… (c) Machines and apparatus of heading 8486 * * * 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 follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 84.86 provides, in pertinent part, as follows: This heading covers machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays. However, this heading excludes machines and apparatus for measuring, checking, inspecting, chemical analysis, etc. (Chapter 90). MACHINES AND APPARATUS FOR THE MANUFACTURE OF SEMICONDUCTOR DEVICES OR OF ELECTRONIC INTEGRATED CIRCUITS This group covers machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits such as : (b) Chemical Vapour Deposition (CVD) equipment, which deposit various types of films which are obtained by combining the appropriate gases in a reactant chamber at elevated temperatures. This constitutes a thermochemical vapor-phase reaction. Operations may take place at atmospheric or low pressure (LPCVD) and may use plasma enhancement (PECVD). (c) Physical Vapour Deposition (PVD) equipment, which deposit various types of films which are obtained by vaporizing a solid. For example: Evaporation equipment, in which the film is generated by heating the source material. Sputtering equipment, in which the film is generated by bombarding the source material (target) with ions. EN 85.04 provides as follows: ELECTRICAL TRANSFORMERS Electrical transformers are apparatus which, without having any moving parts, transform, by means of induction and using a preset or adjustable system, an alternating current into another alternating current of different voltage, impedance, etc. These usually consist of two or more coils of insulated wire wound in various configurations on laminated iron cores, although in some cases (e.g., radio frequency transformers) there may be no magnetic core, or the core may be of agglomerated iron dust, ferrite, etc. An AC in one coil (the primary circuit) induces an AC usually at different values of current and voltage in the others (the secondary circuit). In certain cases (auto transformers) there is only a single coil, part of the winding of which is common to the primary and secondary circuits. In shell type transformers, there is a shell of laminated iron round the transformer. Certain transformers are designed for particular purposes, e.g., matching transformers for matching the impedance of one circuit with that of another, and instrument transformers (current or voltage transformers, combined instrument transformers) used to step down or step up voltages or currents to the level of the connected equipment, e.g., measuring instruments, electricity meters or protective relays. The heading covers all transformers. They vary from ballasts for the control of the amount of current that flows through discharge lamps or tubes, small types used in wireless sets, instruments, toys, etc., to large types enclosed in oil tanks or equipped with radiators, fans, etc., for cooling purposes. The large types are used in electricity stations, stations for interconnecting mains, distributing stations or sub stations. The frequency may vary from mains frequencies up to very high radio frequencies. The heading includes baluns (balancing units) which reduce electro-magnetic interference by balancing the impedance in paired lines. The power handling capacity of a transformer is the kilovolt ampere (kVA) output based on continual use at the rated secondary voltage (or amperage, when applicable) and at the rated frequency without exceeding the rated temperature limitations. * * * * The manufacturer of the instant RF matching device, Advanced Energy Industries (AEI), claims that the subject impedance matching device (referred to as the “Mercury”) is principally used for the manufacture of semiconductor devices and flat panel displays. Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays are provided for in heading 8486, HTSUS. Note 9(D) to Chapter 84 provides that, subject to the exclusions in Note 1 to Section XVI and Note 1 to Chapter 84, machines and apparatus answering to the description in heading 8486 are to be classified in that heading and in no other heading of the tariff schedule. Similarly, Note 1(c) to Chapter 85 excludes machines and apparatus of heading 8486, HTSUS, from Chapter 85. Thus, if the subject RF matching device is classified in heading 8486, HTSUS, as a machine used principally for the manufacture of semiconductor devices, it is precluded from classification in heading 8504, HTSUS. The instant impedance matching networks are machinery or apparatus pursuant to common definitions of these terms . If the impedance matching networks are, as claimed, of a kind principally used for the manufacture of semiconductor devices, they must be classified in heading 8486, HTSUS, and cannot be classified in heading 8504, HTSUS. Heading 8486, HTSUS, provides for “Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays”. The language “of a kind used” indicates that heading 8486, HTSUS, is a principal use provision. Principal use is the use of the class or kind of merchandise at issue that exceeds any other use. In determining whether imported merchandise falls within a particular class or kind of goods, United States v. The Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), considered certain factors to be pertinent: The physical characteristics of the merchandise The expectation of the ultimate purchasers The channels of trade of the merchandise The environment of sale (accompanying accessories, manner of advertisement and display) Use in the same manner as merchandise which defines the class The economic practicality of so using the import Recognition in the trade of this use. The instant RF match devices are components of a chemical vapor deposition system or machine. Chemical vapor deposition is a process used to produce thin films, principally for semiconductors, flat panel displays, magnetic data storage devices (thin film magnetic heads), and photovoltaic (solar) cells. Although impedance matching networks of this type can be used in any of the above applications which involve the creation of plasma inside a chamber, plasmas in general are principally used in semiconductor device fabrication including reactive-ion etching, sputtering, surface cleaning and plasma-enhanced chemical vapor deposition. Thus, semiconductor manufacturing represents a significant majority of the market for the use of RF Power Matching Networks. According to a study you submitted by VLSIresearch in 2011 semiconductor manufacturing accounted for over 80% of the market for the use of RF matching networks; that share is projected to increase through 2018. Flat panel display manufacturing accounts for roughly another 10% of sales for RF matching networks. In addition, the Mercury RF Match is primarily used in conjunction with RF generators of the type at issue in ENI v. United States, 641 F. Supp. 2d 1337 (CIT 2009), which the Court concluded were principally used in the manufacture of semiconductor devices. ENI v. United States at 1346. Further information on the actual use of the instant products submitted by the manufacturer, AEI, indicates that the Mercury device is used primarily for the manufacture of semiconductors. AEI is a provider of power conversion products for the semiconductor, flat panel display and solar panel markets. AEI sells the Mercury device primarily to Lam Research Corp., Novellus Systems Inc. (now merged with Lam Research Corp.), and Applied Materials, Inc. These are the ultimate purchasers of the Mercury. Both companies specialize in the supply of equipment for the manufacture of semiconductors and flat panel displays as well as solar cells. See e.g., http://www.novellus.com/products (“Our chemical vapor deposition (CVD), physical vapor deposition (PVD), electrochemical deposition (ECD), and surface preparation systems are used worldwide for the volume production of advanced semiconductor devices at the lowest overall cost to our customers.”); http://www.appliedmaterials.com. Each company has also certified that the Mercury device in particular is an integral part of chemical vapor deposition machines used specifically in the manufacture of semiconductors. Hence, the Mercury device is marketed for use in the manufacture of semiconductors and flat panel displays, it is sold in the same channels of trade as machines of heading 8486, the ultimate purchasers of the device use it for the manufacture of semiconductors, and the trade recognizes semiconductor manufacturing as the principal use of this device. Because the Mercury device is classified in heading 8486, HTSUS, it cannot be classified in heading 8504, HTSUS, pursuant to Note 1(c) to Chapter 85. Furthermore, because the RF Match is a machine in itself, that functions to match the output impedance of the RF generator to that of the attached load (processing chamber) to 50 Ohms, it is specifically classified as such in subheading 8486.20.00, HTSUS, which provides for “Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; machines and apparatus specified in Note 9 (C) to this chapter: Machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits.”


The product is described in the protest as a “Cap Sensor for use with pacemakers.” In the Appendix attached to MSEI's Memorandum in Support of Protest and AFR, dated November 2, 2010, the product is described as a “Capacitive Acceleration Sensor Land Grid Array.” In their Memorandum, MSEI states the following: MSEI is a subsidiary of Biotronik, which manufactures and markets medical devices, including different types of pacemakers. The Cap Sensors in issue are component assemblies used in Biotronik's pacemakers[.] The Cap Sensors are dedicated solely and exclusively for use in pacemakers. The Cap Sensors are electro-mechanical devices which incorporate a tiny cantilever beam. The beam deflects in response to inertial forces whenever the device is accelerated (i.e., whenever there is a change in direction or speed). The cantilever beam is a mechanical assembly … made of silicon or some other similar material which deflects according to a patient's movement. When the cantilever moves or deflects due to the patient's movement (or lack therof), it causes changes in capacitance or the ability of the capacitor to store a particular charge[.] The pacemaker control circuit detects the mechanical deflection of the cantilever beam by measuring the resultant changes in capacitance. The pacemaker control circuit, not the Cap Sensor, then adjusts the pace rate based on the indirect measurement of a patient's motion. For example, if the patient is running, the pace will be increased while, if the patient is resting, the pace will be decreased. * * * [T]he function of the Cap Sensor is to send signals to the pacemaker control circuit concerning the capacitance of the sensor. * * * The Appendix to the MSEI's Memorandum in Support of Protest and AFR, identifies the instant merchandise as a “Capacitive Acceleration Sensor Land Grid Array.” This document states that “[b]oth the sensor element and the packaged device are custom components, as they are designed specifically to meet MSEI product needs.” Furthermore, MSEI has provided certain drawings detailing the placement of the Cap Sensor inside the pacemaker assembly, and copies of purchasing agreements between MSEI and its parent company, Biotronik SE & Co. of Berlin (Biotronik). The protest pertains to one entry for Cap Sensors. The entry took place on October 27, 2009. The Cap Sensors were entered under heading 8534, HTSUS, as printed circuits. A notice of proposed rate advance was issued on March 19, 2010, proposing to reclassify the Cap Sensors in heading 8536 , HTSUS, as other apparatus for protecting electrical circuits. The Cap Sensors were liquidated under heading 8536, HTSUS, on May 7, 2010.

Tariff classification of Cap Sensors
Protest No. 4196-10-100699

Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on November 2, 2010, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further review of Protest No. 4196-10-100699 was properly accorded to MSEI pursuant to 19 C.F.R. §174.24. Specifically, in accordance with Section 174.24(b), the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. 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 2012 HTSUS provisions at issue are: 8532 Electrical capacitors, fixed, variable or adjustable (pre-set); parts thereof: 8532.30.00 Variable or adjustable (pre-set) capacitors --------------------------------- 8534.00.00 Printed circuits --------------------------------- 8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: 8543.70 Other machines and apparatus: 8543.70.40 Electric synchros and transducers; flight data recorders; defrosters and demisters with electric resistors for aircraft --------------------------------- 9021 Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof: 9021.90 Other: 9021.90.40 Parts and accessories for hearing aids and for pacemakers for stimulating heart muscles --------------------------------- 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 ---------------------------------- Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles: 9817.00.96 Other Note 1 to Section XVI (which covers Chapter 85), HTSUS, states, in pertinent part: “This section does not cover: … (m) Articles of chapter 90; …”. Note 2(a) to Chapter 90, HTSUS, states, in pertinent part: 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: (a) 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; * * * U.S. Note 1 to Chapter 98, HTSUS, states, “The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.” U. S. Note 4 to Subchapter XVII of Chapter 98 (which covers Heading 9817), HTSUS, states, in pertinent part: (a) For purposes of subheading[] … 9817.00.96, the term "blind or other physically or mentally handicapped persons" includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working. (b) Subheadings 9817.00.92, 9817.00.94 and 9817.00.96 do not cover -- * * * (iii) therapeutic and diagnostic articles; … * * * MSEI entered the instant Cap Sensors under heading 8534, HTSUS, as “printed circuits”. MSEI now argues that the instant products are properly classified under heading 8532, HTSUS, as “electrical capacitors”. In the alternative, MSEI argues that instant products are properly classified under heading 9021, HTSUS, as “other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts and accessories thereof”. Finally, MSEI argues that, regardless of the primary classification of the instant Cap Sensors, they are eligible for secondary classification under heading 9817, HTSUS, as “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories … that are specially designed or adapted for use in the foregoing articles”. I. Primary Classification If the instant products are properly classified under heading 9031, HTSUS, then they precluded from classification in any heading in Section XVI, HTSUS, including headings 8532, 8534, and 8543, HTSUS. See Note 1(m) to Section XVI, HTSUS. Furthermore, classification under heading 9031, HTSUS, as a “measuring or checking instrument,” would preclude the instant Cap Sensors from being classified under heading 9021, as parts of an appliance implanted in the body to compensate for a defect or disability. See Note 2(a) to Chapter 90, HTSUS. Therefore, it is proper to first consider whether the instant products are properly classified under heading 9031, HTSUS. Heading 9031, HTSUS, provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter”. The terms “measure” and “instrument” are not defined in the HTSUS or in the ENs. CBP has previously 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 Headquarters Ruling Letter (HQ) H009364, dated November 23, 2009; HQ 965639, dated September 12, 2002; and HQ 954682, dated July 14, 1994. The word “instrument” is defined as: 2. a. A material thing designed or used for the accomplishment of some mechanical or other physical effect; a mechanical contrivance (usually one that is portable, of simple construction, and wielded or operated by the hand); a tool, implement, weapon. Also applied to devices whose primary function is to respond to a physical quantity or phenomenon, esp. by registering or measuring it, rather than to accomplish an effect, and which may function with little direct human intervention and be of complicated design and construction. Oxford English Dictionary, at <http://www.oed.com> (last checked August 31, 2011). MSEI describes the function of the instant merchandise in the following manner: The Cap Sensors are electro-mechanical devices which incorporate a tiny cantilever beam. The beam deflects in response to inertial forces whenever the device is accelerated (i.e., whenever there is a change in direction or speed). * * * When the cantilever moves or deflects due to the patient's movement (or lack thereof), it causes changes in capacitance or the ability of the capacitor to store a particular charge. * * * The pacemaker control circuit detects the mechanical deflection of the cantilever beam by measuring the resultant changes in capacitance. * * * See Memorandum in Support of Protest and AFR, pp. 2-3. Furthermore, MSEI states that “[T]he function of the Cap Sensor is to send signals to the pacemaker control circuit concerning the capacitance of the sensor.” Id. at p. 7. The Cap Sensor is designed to detect the acceleration of a patient fitted with a pacemaker. When the patient changes speed, the cantilever beam reacts to that change. The sensor component detects the changes in capacitance of the two capacitors caused by the motion of the cantilever beam. This information is then transmitted from the Cap Sensor to a separate component, the pacemaker control circuit. The instant Cap Sensors are electromechanical devices whose primary function is to respond to the physical phenomenon of a change in motion by registering it through a change in capacitance caused by the motion of the cantilever beam. Therefore, the instant products are “instruments” within the meaning of the definition given above. Though the Cap Sensor itself does not measure or inspect this data, it is used in the process of measuring or checking. In United States v. Corning Glass Works, 66 CCPA 25, 27, 586 F.2d 822, 825 (1978), the Court stated that the provision for “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Consequently, CBP has consistently held that equipment which 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 H009364; HQ 953382, dated April 15, 1993; and HQ 089391, dated February 6, 1992. In order to adjust the rate of the pacemaker, the pacemaker circuit must know whether the wearer is accelerating, and at what rate. The only functions of the Cap Sensor are to detect the rate of the wearer's acceleration, and transmit that information to the control circuit. Therefore, the instant Cap Sensors are principally used in the process of measuring a pacemaker wearer's acceleration. They are “measuring instruments” within the meaning of heading 9031, HTSUS. CBP has consistently classified accelerometers under heading 9031, HTSUS. An “accelerometer” is “[a]n instrument for ascertaining the acceleration of a moving body or for measuring mechanical vibrations.” Oxford English Dictionary, at <http://www.oed.com> (last checked August 31, 2011). Furthermore, the McGraw-Hill Concise Encyclopedia of Science and Technology, 6th Ed. (2009), defines “accelerometer” as “[a] mechanical or electromechanical instrument that measures acceleration.” In New York Ruling Letter (NY) F82413, dated March 3, 2000, CBP considered an electromechanical device designed to replace mercury switches used in automobiles. CBP described the article in the following manner: [T]he cylinder contains a movable piece in a micromachine which presses against a plate when the device is accelerated. This pressure results in a local change in capacitance, which, via the other electronic elements, results in an increase in voltage, directly proportional to the acceleration, from the device's normal output of 2.5 volts. One of the three pins will be connected to a ground, to a source of constant 5 volt dc current, and to a mini-computer which will read the varying output voltage as a measure of the acceleration experienced. See NY F82413. As such, CBP found that the article was designed to measure acceleration, using capacitance as its primary electrical sensing mode, and classified it under heading 9031, HTSUS. See also NY 875894, dated July 28, 1992 (accelerometers classified under heading 9031, HTSUS). The cap sensor fits the definitions of “accelerometer” provided above, in that it is an electromechanical instrument used in the process of measuring the acceleration of a patient. Furthermore, it is a “measuring instrument” within the scope of heading 9031, HTSUS, and it is not specified or included anywhere else in Chapter 90, HTSUS. Therefore, the Cap Sensor is properly classified under heading 9031, HTSUS. Specifically, it is classified under subheading 9031.80.80, HTSUS, which provides for “Measuring … instruments … not specified or included elsewhere in this chapter …: Other instruments, appliances and machines: Other”. Because the Cap Sensor is properly classified under heading 9031, HTSUS, it is precluded from classification under headings 8532, 8534, and 8543, HTSUS, by application of Note 1(m) to Section XVI, HTSUS. Furthermore, the cap sensors are precluded from classification under heading 9021, HTSUS, by application of Note 2(a) to Chapter 90, HTSUS. II. Secondary Classification MSEI argues that, no matter the primary classification, the Cap Sensor is eligible for secondary classification under heading 9817, HTSUS, which provides, in pertinent part, for “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories … that are specially designed or adapted for use in the foregoing articles”. The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982, established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. These provisions specifically state that “[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons” are eligible for duty-free treatment. CBP has previously found that “those individuals who are suffering from heart problems which mandate the use of pacemakers” are physically handicapped within the meaning of U.S. Note 4(a) to Subchapter XVII of Chapter 98, HTSUS. See HQ 556243, dated December 2, 1991. U.S. Note 4(b)(iii) to Subchapter XVII of Chapter 98, HTSUS, excludes therapeutic and diagnostic articles from classification under subheading 9817.00.96, HTSUS. The Court of International Trade has defined “therapeutic” articles as those that are used to heal or cure the condition causing the handicap, as opposed to those articles which are designed to compensate for, or adapt to, the handicapped condition. Richards Medical Co. v. United States, 720 F.Supp. 998, 1000 (Ct. Int'l. Trade 1989), aff'd 910 F.2d 828 (Fed. Cir. 1990). CBP has previously found that pacemakers and components of pacemakers are not “therapeutic” articles, and are not excluded from classification under subheading 9817.00.96, HTSUS by operation of U.S. Note 4(b)(iii) to Subchapter XVII of Chapter 98, HTSUS. See HQ H556243 (pacemakers); NY N080121, dated November 5, 2009 (components of pacemakers). The question then becomes whether the Cap Sensor is “specially designed or adapted” for a pacemaker within the meaning of the Nairobi Protocol. To determine whether a good is “specially designed or adapted,” CBP uses various factors on a case-by-case basis, as set forth in Treasury Decision (TD) 92-77 (26 Cust. Bull. 240 (1992)). The primary factor to be considered concerns the physical properties of the article itself, i.e., whether the article is easily distinguishable, by properties of the design and the corresponding use specific to this unique design, from articles useful to non-handicapped individuals. * * * Another factor established by Customs was the “probability of general public use.” This factor concerns whether any characteristics are present in an article that create a substantial probability of use by the chronically handicapped, whether the article is easily distinguishable from articles useful to the general public, and whether use of the article by the general public is so improbable that such use would be fugitive. * * * Customs also considered other factors in determining whether an article is “specially designed or adapted” for the handicapped: (a) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (b) whether the articles are sold in specialty stores which serve handicapped individuals; and (c) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped. * * * Each of these factors must be weighed against other factors to determine whether an article is specially designed or adapted for the handicapped. * * * See T.D. 92-77, 26 Cust. Bull. at 243-244. See also HQ 556449, dated May 5, 1992. With respect to the physical properties of the articles, the instant Cap Sensors are electromechanical accelerometers. They are designed as components to several different types of MSEI's pacemakers. MSEI has provided certain assembly drawings detailing the placement of the Cap Sensors inside the pacemaker structure, and cutaway drawings of the Cap Sensors themselves. They are specifically shaped and sized to fit within specific pacemakers, while still performing their intended function. In fact, the specification sheet for the Cap Sensors states that “[t]his document contains detailed specifications for a capacitive acceleration sensor land grid array (LGA). Both the sensor element and the packaged device are custom components, as they are designed specifically to meet MSEI product needs.” With respect to the probability of general use of the articles, MSEI states that the Cap Sensors are custom components, dedicated solely and exclusively for use in Biotronik's pacemakers. These components are sold directly from MSEI to Biotronik. It is possible to imagine a scenario in which a member of the general public could obtain and find some use for this article, but such a use would be considered fugitive. With regard to the other factors, CBP notes that the Cap Sensors are imported by MSEI, and sold to their parent company Biotronik, who is a manufacturer of pacemakers. The instant Cap Sensors do not appear to be sold in stores, and their condition at the time of importation does not necessarily indicate that they are specifically for the handicapped. On balance, it is CBP's position that the various factors discussed above weigh in favor of a determination that the instant Cap Sensors are “specially designed or adapted” for a pacemaker within the meaning of the Nairobi Protocol, and that they are therefore properly classified under heading 9817, HTSUS, specifically under subheading 9817.00.96, HTSUS. The Cap Sensor is properly classified under heading 9031, HTSUS, and under heading 9817, HTSUS. Normally, this would trigger an analysis of which heading provides the most specific description, in accordance with GRI 3(a). However, U.S. Note 1 to Chapter 98, HTSUS, states that the provisions of Chapter 98, HTSUS, are not subject to this rule. Therefore, the Cap Sensor remains classifiable in both headings.