CLA-2 RR:CR:GC 962212 HMC
Port Director of Customs
33 New Montgomery St., Ste. 1501
San Francisco, CA 94105
RE: Protest 2809-98-100442; Automatic Pellicle Mounting System; Measuring or Checking Instruments, Other Optical Instruments and Appliances.
Dear Port Director:
This is our decision on Protest 2809-98-100442, filed against your classification of Nikon Precision Inc.’s automatic pellicle mounting system, model AM-6 (AM-6). The entry under protest was liquidated on April 24, 1998, and this protest timely filed on July 22, 1998.
FACTS:
The AM-6 under protest consists of two units: a pellicle mounting unit and a particle detector for pellicles and reticles. A descriptive sheet provided with the protest explains that the pellicle mounting and particle detection units form the AM-6, which mounts pellicles onto the surface of photomasks and detect particles on the pellicles. The merchandise is designed for semiconductor production utilization. The detection unit is available separately as the AM-601D pellicle and reticle detector.
The entry was liquidated under a provision for other machines and mechanical appliances having individual functions, not specified or included elsewhere under subheading 8479.89.95 of the Harmonized Tariff Schedule of the United States (HTSUS). Protestant claims that the merchandise is classifiable as other optical measuring or checking instruments and appliances under subheading 9031.41.00, HTSUS.
The 1997 HTSUS provisions under consideration are as follows:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances:
8479.89 Other:
Other:
8479.89.85 Machines for processing of semiconductor materials; machines for production and assembly of diodes, transistors and similar semiconductor devices and electronic integrated circuits; machines for the manufacturing of video laser discs...Free
* * * *
8479.89.95 Other...3%
* * * *
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
Other optical instruments and appliances:
9031.41.00 For inspecting semiconductor wafers or devices or for inspecting photomasks or reticles used in manufacturing semiconductor devices...Free
ISSUE:
Whether the AM-6 is a functional unit classifiable as other optical measuring or checking instruments under subheading 9031.41.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the 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.
The protestant contends that the main function of the merchandise is to detect particles on the pellicles, and it is classifiable under subheading 9031.41.00, HTSUS. Section XVI, Note 1(m), HTSUS, states that this section (which includes Chapters 84 and 85) does not cover articles of Chapter 90. If the AM-6 is a good described by a heading of Chapter 90, it cannot be classified in a heading of Chapter 84 or 85. Since the AM-6 is comprised of two components, we must determine if it is a functional unit described by heading 9031, HTSUS.
Chapter 90, Note 3, HTSUS, states that the provisions of Note 4 to Section XVI apply to this chapter. Note 4, Section XVI, HTSUS, states that
[w]here a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). General EN (VII) to Section XVI, HTSUS, at page 1227, states that
For the purposes of this Note, the expression “intended to contribute together to a clearly defined function” covers only machines and combinations of machines essential to the performance of the function specific to the functional unit as a whole, and thus excludes machines or appliances fulfilling auxiliary functions and which do not contribute to the function of the whole.
The EN further states, at page 1228, that “it should be noted that component parts not complying with the terms of Note 4 to Section XVI fall in their own appropriate headings.”
For purposes of Section XVI, Note 4, the term “function” refers to the “activity” it performs. See HQ 962381, dated December 2, 1998, citing ABB Power Transmission v. U.S., 19 CIT 1044 (1995). In ABB Power Transmission v. U.S. at 1048, the court advanced that if a thyristor module functioned principally as a thyristor, then it was classifiable under subheading 8541.30.00, HTSUS. It found that the function the merchandise performed fell within the definition of a thyristor. In light of ABB Power Transmission, we must determine what is the main function of the AM-6, if any, (i.e. do the components of the AM-6 “contribute together to a clearly defined function covered by one of the headings in Chapter 84 or 85 [or 90, by virtue of Note 3 of that Chapter]”), and which component performs that function.
The evidence provided by the protestant shows that the AM-6 is made of a pellicle mounting unit and a particle detector for pellicles and reticles. These devices perform distinct functions of checking and mounting. We find that the AM-6 cannot be classified as a functional unit because we cannot discern a clearly defined function for the system. The evidence shows that the checking and mounting functions are equally important to the system. We then need to classify the AM-6 according to its component parts.
We note that in HQ 954682, dated July 14, 1994, Customs determined that a inspection machine designed to detect foreign particulate in glass ampoules was described by heading 9031, HTSUS. Similarly, we find that the subject particle detector is classifiable under subheading 9031.41.00, HTSUS. The mounting machine would be classifiable under subheading 8479.89.85, HTSUS.
HOLDING:
The automatic pellicle mounting system, model AM-6 (AM-6) is classifiable based on its component parts. The mounting unit is classifiable under subheading 8479.89.85, HTSUS, as other machines and mechanical appliances: other: other: machines for processing of semiconductor materials; machines for production and assembly of diodes, transistors and similar semiconductor devices and electronic integrated circuits; machines for the manufacturing of video laser discs. The particle detector unit is classifiable under subheading 9031.41.00, HTSUS, as other optical instruments and appliances: for inspecting semiconductor wafers or devices or for inspecting photomasks or reticles used in manufacturing semiconductor devices.
This protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division