CLA-2 RR:CR:GC 960563 JAS
Port Director of Customs
33 New Montgomery Street
San Francisco, CA 94105
RE: PRD 2809-96-101306; Cluster Sputter Coating Machine Imported
in Multiple Shipments; Cluster Handler, PVD Platform; Unfinished Sputter Coating Machine, GRI 2(a); Parts of
Sputter Coating Machine; Section XVI, Note 2; Nidec
Corporation v. U.S., HQ 960562
Dear Port Director:
This is our decision on Protest 2809-96-101306, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS), of one shipment of parts or
components for the Nordiko 9550 cluster sputter coating machine,
products of the United Kingdom. The entry being protested was
liquidated on September 13, 1996, and this protest timely filed
on September 24, 1996.
FACTS:
The cluster sputter coating machine is a physical vapor
deposition machine that deposits electric conducting metal films
or layers onto the surface of aluminum, glass or silicon wafer
substrates by means of an electric ion discharge in a vacuum.
Processes of this type are often referred to as "sputtering."
This entry covers components described in the commercial
invoice as an "automation cluster handler" and "pvd platform for
high saturation magnetic layers." The components and their
function are not further described. The entry covers only 1 of
10 crates of parts or components of the complete sputter coating
machine representing 40 percent of the total cost or value of the
complete machine.
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The components in this entry were entered under a provision
in heading 8543, HTSUS, as electrical machines and apparatus.
The Customs Form 6445 indicates that your office considered the
components to be a machine of heading 8479, HTSUS, but not one
for the production of semiconductor devices or electronic
integrated circuits. The entry was liquidated under a provision
in heading 8479 for other machines. The protestant now maintains
that the correct classification is in subheading 8479.89.85,
HTSUS, as machines for the production of semiconductor devices
and electronic integrated circuits. The argument is that these
components are essential to the proper functioning of a sputter
coating machine.
The provisions under consideration are as follows:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]:
Other machines and mechanical appliances:
8479.89 Other:
8479.89.85 [M]achines for...production of...semiconductor devices and electronic integrated circuits
8479.89.95 Other
8479.90 Parts:
8479.90.95 (now 90.93) Other
* * * *
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [chapter 85]; parts thereof:
8543.30.00 Machines and apparatus for electroplating, electrolysis or
electrophoresis
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ISSUE:
Whether the cluster handler and pvd platform constitute an
unfinished sputter coating machine of heading 8479; whether they
constitute another machine of heading 8479; whether they are
parts of machines of heading 8479.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. GRI 2(a)
states, in part, that incomplete or unfinished articles shall be
classified as if they were complete or finished, provided the
incomplete or unfinished article has the essential character of
the complete or finished article.
Initially, we agree with your office that heading 8543 does
not apply, as there is no indication from the limited information
available that the components under protest are electrical for
purposes of that heading. It is apparent that the references in
the Customs Form 6445 to "the machine" were to the sputter coater
itself when, in fact, the cluster handler and pvd platform in
issue appear to be parts of the sputter coater. In this regard,
similar physical vapor deposition machines have been held to be
classifiable in subheading 8479.89.85, HTSUS, as belonging to
that class or kind of machines the principal use of which is the
production of semiconductor devices and electronic integrated
circuits. See HQ 960562, dated October 23, 1997.
As to whether the cluster handler and pvd platform impart
the essential character to a complete sputter coater of
subheading 8479.89.85, the nature of the components and their
role in relation to the use of the complete or finished good are
among the factors deemed relevant and which must be examined. In
this case, however, the components are not described, nor is
their relationship to the complete sputter coater. There is no
basis, therefore, on which to make an essential character
determination.
Subject to certain exceptions that do not appear relevant
here, goods that are identifiable as parts of machines or
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apparatus of Chapter 84 or Chapter 85 are classifiable in
accordance with Section XVI, Note 2, HTSUS. Nidec Corporation v.
United States, 861 F. Supp. 136, aff'd. 68 F. 3d 1333 (1995).
HOLDING:
Under the authority of GRI 1, applied at the subheading
level through GRI 6, the cluster handler and pvd platform are
classifiable in accordance with Section XVI, Note 2, HTSUS. The
record does not establish whether either component is a good
included in a heading of Chapter 84 or Chapter 85, under Note
2(a). Because the cluster handler and pvd platform are parts
that appear to be suitable for use solely or principally with
physical deposition machines classifiable in subheading
8479.89.85, they are classifiable in subheading 8479.90.95( now
90.93), under Note 2(b).
The cluster handler and pvd platform should be reclassified
as indicated and the protest DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry 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 of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division