CLA-2 RR: CR: GC 966573 TPB
Larry Firestone
Applied Films Corporation
9586 I-25 Frontage Road
Longmont, CO 80504
RE: Classification of a High-Vacuum Web Coating System; NY H80834 Affirmed.
Dear Mr. Firestone:
This is in response to a letter dated May 15, 2003, requesting reconsideration of NY H80834, dated May 29, 2001. This ruling, issued to Applied Films (“Applied”), classified a high-vacuum web coating system under subheading 8419.89, Harmonized Tariff Schedule of the United States (“HTSUS”). We have re-examined this ruling taking into account information submitted by you in the instant submission. For the reasons set forth below, we affirm NY H80834.
FACTS:
The merchandise is described in NY H80834 as follows:
The article in question is a high-vacuum web-coating system identified as the Topmet. The merchandise consists of roll-coating evaporation machines for use in the packaging industry. This equipment uses thermal evaporation to deposit thin layers of aluminum onto flexible substrates that can be supplied in roll form. The substrates are typically plastic film or paper, but can also include textiles. The rolls are put in the Topmet and unwound, coated with aluminum, and rewound under specific vacuum levels. You indicate that the primary uses for the aluminum-coated substrates are in the packaging industry.
ISSUE:
Is the high-vacuum web coating system properly classified under subheading 8419.89.95 (formerly 8419.89.90), HTSUS, which provides for machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating, drying, evaporating..., other than machinery or plant of a kind used for domestic purposes: other: other: other: for other materials, or under subheading 8543.89.20, HTSUS, which provides for other physical vapor deposition (“PVD”) apparatus?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”s). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“EN”s) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
8419 Machinery plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating…:
Other machinery or plant equipment:
8419.89 Other:
Other:
8419.89.95 Other:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter…:
Other machines and apparatus:
8543.89 Other:
Physical vapor deposition apparatus:
8543.89.20 Other.
On December 8, 2001, based on the recommendation of the U.S. International Trade Commission, the President modified the text of the HTSUS to specifically provide for PVD equipment (66 Fed Reg. 66,549, 66,655). Specifically, Presidential Proclamation 7515 of December 18, 2001 added three new subheadings covering PVD apparatus and its parts under heading 8543, HTSUS. This proclamation came as a result of a World Customs Organization decision during the 21st Session of the Harmonized System Committee in the Spring of 1998. See Annex H/11 to Doc. 42.100 E and Annex K/22 to Doc. 42.750. This moved the classification of PVD apparatus from their previous subheading 8479.89.85, HTSUS.
We first note that the merchandise at issue was not previously classified under subheading 8479.89.85, HTSUS. Rather, it was classified under subheading 8419.89.95, HTSUS. Thus, there is no requirement of an automatic change in classification as would be required by the Presidential proclamation. To that end, we assume that you believe that the merchandise was mis-classified as machinery for the treatment of materials by a process involving a change in temperature rather than as PVD apparatus.
EN 85.43 states, in pertinent part:
The heading includes, inter alia:
…
(17) Apparatus for physical vapour deposition of metal by means of a magnetron, used, inter alia, in the manufacture of integrated circuits.
Emphasis original.
Thus, in order to be considered PVD apparatus for the purposes of subheading 8543.89.20, HTSUS, the above ENs require that the physical vapor deposition of metal be accomplished by means of a magnetron. A magnetron is a diode vacuum tube in which the flow of electrons is controlled by an externally applied magnetic field to generate power at microwave frequencies (Merriam-Webster’s Collegiate Dictionary, 10th ed., pg. 698). Applied’s system uses thermal evaporation as the means to deposit thin layers of metals. Because the system operates not by means of a magnetron, but rather by treating materials by a process involving a change in temperature, in this case, heating, it is not classifiable under heading 8543, HTSUS. Accordingly, based upon the facts presented, the original classification of the web coating system under subheading 8419.89.985, HTSUS, is correct.
This decision is consistent with previous rulings by Customs on PVD machines that were classified under subheading 8479.89, HTSUS (now 8543.89, HTSUS). See HQ 954221, dated August 20, 1993; HQ 960563, dated October 28, 1997; and HQ 960554, dated August 17, 1998.
HOLDING:
For the reasons stated above, Applied Films TOPMET - High Vacuum Web Coating System remains classified under subheading 8419.89.95 (formerly 8419.89.95), HTSUS, which provides for machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating, drying, evaporating..., other than machinery or plant of a kind used for domestic purposes: other: other: other: for other materials
NY H80834, dated May 29, 2001, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division