CLA-2 R:C:M 957961 DWS

District Director
U.S. Customs Service
44845 Falcon Place
Sterling, VA 20166

RE: Protest 5401-94-100042; Microwave Module; Microassembly; Chapter 85, Note 5; Explanatory Note 85.42; HQ 086654; 8542.80.00

Dear District Director:

The following is our decision regarding Protest 5401-94-100042 concerning your action in classifying and assessing duty on a microwave module under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of a microwave module for use in cellular mobile communication equipment, designed to amplify incoming and outgoing electromagnetic signals. The module, which is mounted on a metal support and contains both passive and active components, has two field capacitors, a printed circuit board (PCB), resistors, and transformers.

The microwave module was entered under subheading 8542.80.00, HTSUS, as an other microassembly. The entries were liquidated on May 13, June 3 and 24, 1994, under subheadings 8529.90.50 (1993) and 8529.90.99 (1994), HTSUS, as other parts suitable for use solely or principally with the apparatus of headings 8525 to 8528, HTSUS. The protest was timely filed on August 9, 1994.

ISSUE:

Whether the microwave module is classifiable under subheading 8542.80.00, HTSUS, as an other microassembly, or under subheadings 8529.90.50 and 8529.90.99, HTSUS, as other parts suitable for use solely or principally with the apparatus of headings 8525 to 8528, HTSUS.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The subheadings under consideration are as follows:

8542.80.00: [e]lectronic integrated circuits and microassemblies; parts thereof: [o]ther.

The 1993 and 1994 general, column one rates of duty for goods classifiable under this provision are 3.9 percent ad valorem and duty-free, respectively.

8529.90.50: [p]arts suitable for use solely or principally with the apparatus of headings 8525 to 8528: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.9 percent ad valorem.

8529.90.99: [p]arts suitable for use solely or principally with the apparatus of headings 8525 to 8528: [o]ther: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.9 percent ad valorem.

In part, chapter 85, note 5, HTSUS, states:

5. For the purposes of headings 8541 and 8542:

(a) xxx

(b) "Electronic integrated circuits and microassemblies" are:

(i) - (ii) xxx

(iii) Microassemblies of the molded module, micromodule or similar types, consisting of discrete, active or both active and passive, components which are combined and interconnected.

For the classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the tariff schedule which might cover them by reference to, in particular, their function.

Therefore, if the microwave module is described under heading 8542, HTSUS, then it is so classifiable.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, 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). In part, Explanatory Note 85.42 (pp. 1400 - 1401) states that:

[t]he articles of this heading are defined in Note 5(b) to the Chapter.

Electronic integrated circuits and microassemblies are devices having a high passive and active element or component density, which are regarded as single units. . . The articles of this heading (electronic microcircuits) fall into two groups, according to manufacturing process: integrated circuits and microassemblies.

(I) xxx

(II) Electronic microassemblies.

Microassemblies are made from discrete, active or both active and passive components which are combined and interconnected.

Discrete components are indivisible and are the basic electronic construction components in a system. They may have a single active electrical function . . . or a single passive electrical function . . .

However, components consisting of several electric circuit elements and having multiple electrical functions, such as integrated circuits, are not considered as discrete components.

Microassemblies are normally in the form of modules such as:

(1) Moulded modules in which the components are encased in a block . . . generally of plastics.

(2) Micromodules made by superimposing and interconnecting several rectangular . . . substrates, each serving as a carrier for one or more components. . .

. . . the heading excludes assemblies formed by mounting one or more discrete components on a support formed, for example, by a printed circuit and assemblies formed by adding to an electronic microcircuit either one or more other microcircuits of the same or of different types or one or more other devices, such as diodes, transformers, resistors. . .

The microwave module possess one or more discrete components attached to a metal support incorporating a PCB. Also placed on this support are other devices, including transformers, capacitors, and resistors. Therefore, in accordance with Explanatory Note 85.42, The microwave module is not a microassembly classifiable under heading 8542, HTSUS. See HQ 086654, dated June 4, 1990, which held similar module subassemblies precluded from classification under heading 8542, HTSUS.

There is no question that the microwave module is a part of a cellular mobile communication equipment classifiable under heading 8525, HTSUS. Therefore, in accordance with GRI 1, the module is classifiable under subheadings 8529.90.50 and 8529.90.99, HTSUS.

HOLDING:

The microwave module is classifiable under subheadings 8529.90.50 and 8529.90.99, HTSUS, as other parts suitable for use solely or principally with the apparatus of headings 8525 to 8528, HTSUS.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division