CLA-2 CO:R:C:G 086518 CMS
8504.90.00
8541.30.00
8541.50.00
Mr. Philip Y. Simons, Esq.
Freeman, Wasserman & Schneider
90 John Street
New York, NY 10038
RE: Reconsideration Of HQ 085027 (January 31, 1990); Thyristor
Modules; Semiconductor Devices; Static Converters, Parts;
High Voltage Direct Current (HVDC) Power Conversion Stations;
Firing Circuitry; Voltage Divider Circuitry; Heatsinks
Dear Mr. Simons,
This is in response to your request dated February 9,
1990, on behalf of ABB Power Transmission, Inc. (ABB), for the
reconsideration of HQ Ruling 085027 (January 31, 1990). Our
ruling follows.
FACTS:
The merchandise is described by ABB as "thyristor modules".
HQ Ruling 085027 held that the thyristor modules were classified
as static converters in 8504.40.00, HTSUSA.
The modules are assemblies of electrical and mechanical
devices and are approximately 4' long, 3' wide and 1' high.
Each module consists of six thyristors, firing circuitry, voltage
divider circuitry and cooling equipment. The components are
assembled in a frame of epoxy resin and aluminum. The modules
are used as parts of high voltage direct current (HVDC) power
conversion stations.
Each of the six thyristors within a module consists of four
alternative layers of doped silicon. The silicon layers are
mounted in ceramic or metal casings in the form of discs
approximately 6" to 8" in diameter.
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The voltage divider circuitry consists of capacitors and
resistors, and functions to ensure that there is uniform voltage
distribution across the six thyristors. The diagram of a
thyristor module submitted with the October 17, 1989 submission
shows a total of at least 28 capacitors and resistors within each
module.
The firing circuitry facilitates the triggering pulses for
the thyristors. Each of the six thyristors are fired
simultaneously. The January 3, 1989 ruling request, p. 4, states
that "ABB's thyristors are optically activated by use of a light
signal propagated through fiber optic cables. During a typical
firing sequence, the triggering pulse lasts only a few
milliseconds."
The cooling equipment consists of seven heatsinks which are
situated between the thyristors and at each end of the thyristor
"column". The heatsinks are interconnected by cooling water
tubing.
ISSUE:
Are the thyristor modules classified as parts of static
converters in Heading 8504, or as semiconductor devices in
Heading 8541?
LAW AND ANALYSIS:
Static converters and parts thereof are described by Heading
8504. Diodes, transistors and similar semiconductor devices are
described by Heading 8541.
ABB argues that the modules cannot be classified in Heading
8504 as "parts" of static converters because they are described
and classified as semiconductor devices in Heading 8541. ABB
cites Chapter 85 Note 2, which provides in pertinent part that
Heading 8504 does not apply to goods described in Heading 8541.
ABB also cites Section XVI Note 2(a) and the general Explanatory
Notes to Section XVI. Section XVI Note 2(a) in pertinent part
states that parts which are goods included in any of the
headings of chapters 84 or 85 are classified in their respective
headings; the General Explanatory Notes to Section XVI, p. 1131,
provide in pertinent part that articles, including "diodes,
transistors, etc., of heading 85.41", which constitute an article
covered by a heading of Section XVI are classified in their own
appropriate heading.
ABB submits that the thyristor modules are described by
Heading 8541 as "similar semiconductor devices". The
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Explanatory Notes to Heading 8541, p. 1397, provide:
Similar semiconductor devices. The "similar" devices referred
to here are semiconductor devices whose operation depends on
variations in resistivity in the application of an electric
field.
They include:
(1) Thyristors, consisting of four conductivity regions in
semiconducting materials (three or more p n junctions)
through which a direct current passes in a predetermined
direction when a control pulse initiates conductivity.
They are used as controlled rectifiers, as switches or
as amplifiers and function as two interlocking,
complementary transistors with a common collector/base
junction.
The Explanatory Notes to Heading 8541 also provide that the
four conductivity regions of semiconducting material can be
assembled with certain types of articles used to mount the
semiconducting material. The Explanatory Notes, p. 1398 provide:
The devices described above fall in this heading
whether presented mounted, that is to say with their
terminals or leads or packaged (components), unmounted
(elements) or even in the form of undiced discs (wafers).
Each of the six individual thyristors within a module appear
to be described as Heading 8541 similar semiconductor devices.
They consist of four conductivity regions in semiconducting
silicon material mounted in a metal or ceramic casing. The
operation of the individual thyristors depends on variations in
resistivity in the application of an electric field, and the
definition of Heading 8504 semiconductors provided in Chapter 85
Note 5(A) is thus satisfied as to the individual thyristors. If
the merchandise under consideration consisted of just thyristors,
it would apparently be classified in Heading 8541.
However, the merchandise at issue is not thyristors. The
merchandise consists of thyristor modules. The thyristors within
a module are only one type of device in a complex assembly
comprised of many types of devices. The firing circuitry,
voltage divider circuitry and cooling equipment are not
"semiconductor" devices and are not mere mountings or packaging
for semiconductor devices. The firing circuitry, voltage divider
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circuitry and cooling equipment are essential to the function of
the thyristor modules and are assembled together with the
thyristors for the specific purpose of working in a HVDC power
conversion station.
The thyristor modules are only partly described by Heading
8541, but are fully described by Heading 8504 which covers static
converters and parts thereof.
The Explanatory Notes to Heading 8504, p. 1338, provide that
Heading 8504 semiconductor converters "...consist of a
semiconductor as the converting element and various other devices
(e.g., coolers, tape conductors, drives, regulators, control
circuits) (emphasis added). The Explanatory Notes further
provide at p. 1338, that Heading 8504 semiconductor converters
include "semiconductor rectifiers using, as a converting element,
a device containing silicon or germanium crystals (e.g., diode,
thyristor, transistor)" (emphasis added).
The thyristor modules under consideration contain a
semiconductor as the converting element (thyristor) and various
other devices (cooling equipment, firing circuitry, voltage
divider circuitry), assembled for use as part of a Heading 8541
converter.
The thyristor modules do not contain all the devices needed
to form complete Heading 8504 converters. They do, however,
contain enough devices to be identified and described as articles
solely or principally used as parts of Heading 8504 static
converters.
ABB submits the following additional arguments in support of
the classification of the thyristor modules in Heading 8541: (1),
the Explanatory Notes to the Combined Nomenclature of the
European Community support the classification in Heading 8541;
(2), the modules are analogous to certain transistor modules
classified in Heading 8541 in two HQ Rulings; (3), the modules
are classified in Heading 8541 as composite machines pursuant to
Section XVI Note 3; (4), the modules are classified in Heading
8541 as functional units pursuant to Section XVI Note 4; (5), if
the modules are not classified as thyristors in subheading
8541.30.00, then they are classified as other semiconductor
devices in subheading 8541.50.00; (6), the Explanatory Notes to
Heading 8541 regarding piezo-electric crystals support the
classification of the thyristor modules in Heading 8541.
ABB cites the Explanatory Notes to Heading 8504 of the
Combined Nomenclature of the European Community. These Notes are
cited in support of the argument that the EEC would exclude the
thyristor modules from Heading 8504 because they are not combined
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with a transformer or resistor. However, the thyristor modules
do combine thyristors with the resistors in the voltage divider
circuitry. Further, the EEC Explanatory Notes (1988 and 1989
Editions), merely provide that multiple silicon elements are not
included in Heading 8504 "...provided they are not combined with
another electrical element such as a transformer or resistor"
(emphasis added). In addition to the voltage divider circuitry,
the silicon elements in the thyristor modules are combined with
the electrical elements of the firing circuitry. Finally, the
EEC Explanatory Notes to Heading 8504 appear to provide that
Heading 8541 articles may be fitted with a cooling device, but it
has not been established that the cooling device may be as
substantial as heatsinks interconnected by cooling water tubing.
HQ Rulings 084659 (August 25, 1989) and 084660 (September
7, 1989) are cited in ABB's Request For Reconsideration in
support of the argument that the thyristor modules are
classified in Heading 8541. These two rulings classified
transistor modules consisting of multiple transistor diodes in
Heading 8541 as transistors. ABB highlights the similarities
between the transistor and thyristor modules which both
incorporate multiple semiconductor elements. However, ABB does
not address the substantial differences between the modules.
Unlike the transistor modules, the thyristor modules incorporate
firing circuitry which facilitates the triggering pulses for the
semiconductor devices. The voltage divider circuitry of the
thyristor modules is not analogous to whatever resistors may be
present in the transistor modules. Transistors and thyristors
are different types of semiconductors and are described
differently in the Explanatory Notes to Heading 8541. The
transistor modules meet the common meaning of "transistor" and
the description of transistors in the Explanatory Notes; the
thyristor modules do not meet the common meaning of "thyristor"
and the description of thyristors in the Explanatory Notes.
Unlike the transistor modules, the thyristor modules are designed
for the specific purpose of functioning as part of a Heading 8541
static converter.
ABB also argues that the thyristor modules are classified in
Heading 8541 as Section XVI Note 3 "composite machines". ABB
quotes and discusses certain portions of Section XVI Note 3, but
does not address the first five words of Note 3: "Unless the
context otherwise requires" (emphasis added). The context
requires that the thyristor modules be classified pursuant to a
Section XVI Note other than Note 3. The modules are parts of
machines and Section XVI Note 2 provides specific classification
rules for parts of machines. The modules are not any of the
goods included in any of the headings of Chapters 84 or 85 and
thus they are not classified pursuant to Note 2(a). Instead, the
modules are parts suitable for use solely or principally with
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static converters and are classified as parts in Heading 8504
pursuant to Section XVI Note 2(b). Further, the thyristor
modules are not similar to the exemplars of "composite machines"
provided in the General Explanatory Notes to Section XVI, p. 1133
(e.g., printing machine, box making machine, industrial furnace,
cigarette making machine); unlike the thyristor modules, the
exemplars are identifiable as essentially complete machines and
are not identifiable merely as parts of machines.
ABB cites HQ Ruling 085577 (January 10, 1990) in support of
the composite machine argument. HQ 085577 found that an audio
rack system comprised of an amplifier, tuner and cassette deck
was not a Section XVI composite machine because the components
were not sufficiently "fitted together to form a whole". ABB's
argument that the thyristor modules are "fitted together" does
not establish that the modules are composite machines. The
thyristor modules are "parts" classified pursuant to Section XVI
Note 2, and are not classified pursuant to Section XVI Note 3
like the General Explanatory Note exemplars. It has not been
established that a thyristor module, which is merely a part, is
considered to be a "whole" pursuant to Section XVI Note 3.
Further, ABB's attempt in its July 13, 1990 submission to
directly apply the criteria for a GRI 3(b) composite good to the
classification of a Section XVI composite machine is unsupported;
GRI 3(b) composite goods are classified according to GRI 3,
whereas Section XVI composite goods are provided for in section
notes and are classified according to GRI 1.
ABB argues that the thyristor modules are classified in
Heading 8541 as Section XVI Note 4 "functional units". Section
XVI Note 4 provides that the components of functional units
"...contribute together to a clearly defined function covered by
one of the headings in chapter 84 or chapter 85..." (emphasis
added). The thyristor modules do not satisfy the requirements of
Section XVI Note 4. Although the function of the individual
thyristors within a module may be described by Heading 8541, the
individual thyristors are incorporated in a complex assembly with
firing circuitry, voltage divider circuitry and certain cooling
equipment. Heading 8541 clearly does not describe the function
of these other devices, and nothing in Heading 8541 suggests that
it was intended to cover the complex assembly under
consideration. ABB argues that the modules function like a
single "semiconductor gate". However, Heading 8541 describes
"semiconductor devices" and only the thyristors within the
thyristor modules are semiconductor devices. The thyristor
modules function as they are intended, i.e., as assemblies of six
semiconductor devices combined with other devices for the sole
function of working in a HVDC power conversion station. If there
is a heading which describes the function of the modules, it is
Heading 8504 which describes parts of static converters. The
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modules, however, are merely "parts" and are classified according
to Section XVI Note 2, not Section XVI Note 4.
ABB cites HQ Ruling 086851 (April 9, 1990) in support of the
functional unit argument. However, the thyristor modules are not
analogous to the functional units under consideration in HQ
086851, which were essentially complete units and had clearly
defined functions covered by a particular heading (e.g.,
automatic data processing machines, Heading 8471; printers,
Heading 8471; chromatographic analysis equipment, Heading 9027).
Further, the thyristor modules are mere parts and are not
similar to the exemplars of functional units provided in the
General Explanatory Notes to Section XVI, pp. 1133-1134.
ABB argues that if the thyristor modules are not
classifiable as "thyristors" in subheading 8541.30.00, then they
are classified as "other semiconductor devices" in subheading
8541.50.00. The thyristor modules are not classified as "other
semiconductor devices". The semiconductor devices within the
modules are thyristors, not some other semiconductor device. In
any event, only part of the thyristor modules consist of any type
of semiconductor device described by Heading 8541. The modules
incorporate semiconductor devices (i.e., thyristors), and non-
semiconductor devices (i.e., firing circuitry, voltage divider
circuitry, cooling equipment). They are only partly described by
Heading 8541, but are fully described as parts of Heading 8504
static converters consisting of semiconductor elements and
certain other devices.
ABB argues that the Explanatory Notes to Heading 8541
regarding mounted piezo-electric crystals support the
classification of the thyristor modules in Heading 8541. The
Explanatory Notes, p. 1399, provide:
If, however, because of the addition of other
components, the complete article (mounting plus
crystal) can no longer be regarded as merely a
mounted crystal but has become identifiable as a
specific part of a machine or appliance, the assembly
is classified as a part of the machine or appliance
in question;
ABB argues that because similar language is not included in the
Explanatory Notes for "similar semiconductor devices", the
principle embodied in the language was not intended to apply to
"similar semiconductor devices". This is simply not the case.
This Explanatory Note language illustrates Section XVI Note 2,
which except for some inapplicable headings, applies to Section
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XVI "parts" including thyristor modules. The Explanatory Note
language and Section XVI Note 2 require that mounted piezo-
electric crystals which have been assembled with other components
and are thus no longer mere mounted crystals, are not classified
as mounted crystals in Heading 8541; instead, the articles are
classified as parts of the machine or appliance in question
pursuant to Section XVI Note 2(b). Similarly, Heading 8541
similar semiconductor devices (e.g., thyristors), which have been
assembled with other components (e.g., firing circuitry, voltage
divider circuitry, cooling equipment) and can no longer be
regarded as mere semiconductor devices, are classified as a part
of the machine or appliance in question (e.g., part of Heading
8504 static converter).
The thyristor modules are not described as Heading 8541
similar semiconductor devices. They are described by Heading
8504 and are classified as parts of static converters in
8504.90.00, HTSUSA.
HOLDING:
HQ Ruling 085027 (January 31, 1990) is modified to provide
that the thyristor modules are classified as parts of static
converters in 8504.90.00, HTSUSA.
Sincerely,
Harvey Fox
Director, Office of
Regulations and Rulings