CLA-2 RR:CR:GC 964606 KBR
Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, IL 60607-4523
RE: Protest 3901-00-100571; UHF Power Module for Cellular Telephones
Dear Port Director:
This is our decision on Protest 3901-00-100571, filed by counsel on behalf of Fujitsu Compound Semiconductor, Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a UHF power module for cellular telephones. Entries were reliquidated on March 1, 2000, and March 2, 2000. This protest was timely filed on May 18, 2000. In preparing this decision, consideration was also given to information presented by counsel for the protestant in a teleconference on April 25, 2002.
FACTS:
The protest concerns the classification of a UHF power module designed for use with cellular telephones. The article is used to amplify modulated signals and transmit them with required output within a cellular phone. The article is comprised of various active and passive elements connected on an insulated base. Both the passive and the active elements are soldered onto the insulated substrate. The substrate is described as a glass thermoset Poly Phenylene Oxide (PPO) copper clad laminate with a dielectric constant on 10.5, on which additional circuit elements (distributed inductors) are printed directly on the substrate. Interconnections between the elements are also printed on the substrate. The substrate and all the active and passive components are encased in a metal base and friction-snap metal cap. The article measures 0.516 inches in width, 0.157 inches in height, and 0.984 inches in length.
The protestant argues that the reliquidation of six of the 19 entries that were reclassified was invalid as untimely. These entries are: 231-xxxx388-0, 231-xxxx755-0, 231-xxxx035-6, 231-xxxx200-6, 231-xxxx688-2, 231-xxxx692-4. The original liquidation of these entries was on December 3, 10, and 17, 1999. The bulletin notice shows the reliquidation of the entries occurred on March 1 and 2, 2000. The Automated Commercial System (ACS) reflects a reliquidation date of March 17, 2000.
ISSUES:
Was the reliquidation timely?
What is the classification of the UHF power module for cellular telephones?
LAW AND ANALYSIS:
Timeliness of Reliquidation
Reliquidation of an entry is protestable under § 1514(a)(5) and the protest is timely inasmuch as it was filed within 90 days of the reliquidation. 19 U.S.C.
§ 1514(c)(3)(A).
Pursuant to 19 U.S.C. § 1501 and 19 C.F.R. § 173.3, district directors are authorized to re-liquidate entries voluntarily within 90 days from the date on which
notice of the original liquidation was given to the importer, his consignee or agent. The purpose of voluntary reliquidation is to enable Customs officers to correct errors in the appraisement, classification, liquidation or reliquidation of the merchandise within the specified time period; prior to the enactment of this provision, some of these issues could only be resolved in court. H.R. Rep. No. 91-267, 91st Cong., 2nd Sess., reprinted in 1970 U.S. Code Cong. & Admin. News 3188, 3212. More than one voluntary reliquidation is permitted under this section; however, no adjustments may be made more than 90 days after notice of the original liquidation has been given.
The protestant stipulates, and the Automated Commercial System (ACS) reflects, that the six entries in question were originally liquidated on December 3, 10, and 17, 1999. The protestant argues that insofar as Customs reliquidated the entries on March 17, 2000, more than 90 days after the original liquidations, the reliquidations should be invalid. The port asserts that it manually reliquidated the entries, before the 90-day period. According to the Bulletin notice in the record, the entries were reliquidated on March 1 and 2, 2000. We note that Bulletin notice of liquidation is the only required notice. 19 CFR § 159.9. The notations on CF 7501s indicate that the entries were liquidated on March 1, 2000. Further, although the reliquidation date in ACS reflects that the entries were reliquidated on March 17, 2000, this date reflects the billing date and does not reflect the reliquidation date that was posted in the Bulletin notice. See HQ 956588 (October 28, 1999)(follow-up notice in ACS does not amount to notice of subsequent liquidation and the liquidation date therein is simply a billing date). Insofar as the liquidations were reliquidated on March 1 and March 2, 2000, before the 90-day period for voluntary reliquidation expired, the reliquidation pursuant to 19 U.S.C.
§ 1501 was not erroneous.
Classification
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the 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 interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528:
8529.90 Other:
Other:
8529.90.99 Other
8542 Electronic integrated circuits and microassemblies; parts thereof:
8542.40.00 Hybrid integrated circuits
8542.50.00 Electronic microassemblies
Heading 8542 provides for electronic integrated circuits and microassemblies. Chapter 85, legal note 5(b) defines that phrase as including, in pertinent part,
(ii) Hybrid integrated circuits in which passive elements (resistors, capacitors, interconnections, etc.), obtained by thin- or thick-film technology, and active elements (diodes, transistors, monolithic integrated circuits, etc.), obtained by semiconductor technology, are combined to all intents and purposes indivisibly, on a single insulating substrate (glass, ceramic, etc.). These circuits may also include discrete components;
(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.
Counsel for the protestant argues that legal note 5(b)(ii) and EN 8542(I)(2) require only that hybrid integrated circuits contain elements obtained by film technology, whether discrete or built up on the substrate. Stated conversely, counsel does not believe that elements must be produced through film technology directly on the substrate of the hybrid integrated circuit, in the mass before the semiconductors and discrete passive components are added to the substrate. These arguments have already been addressed in HQ 961050, dated May 1, 2000. That discussion is incorporated by reference herein. Moreover, protestant seeks classification as hybrid integrated circuits by providing details about only one of 20 microwave power modules. Schematics and other documents were not explained in English. Protestant has failed to provide the evidence that would persuade us of this claim.
Failing classification in subheading 8542.40, HTSUS, counsel asks that Customs classify the UHF power modules as microassemblies in subheading 8542.50, HTSUS. In discussing legal note 5(b)(ii), set forth above, the EN states:
Discrete components are indivisible and are the basic electronic construction components in a system. They may have a single active electrical function (semiconductor devices defined by Note 5 (A) to Chapter 85) or a single passive electrical function (resistors, capacitors, interconnections, etc.).
However, components consisting of several electric circuit elements and having multiple electrical functions, such as integrated circuits, are not considered as discrete components.
* * * * *
[T]he heading also 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.
“Attachment B” submitted by the protestant for the subject UHF power modules, describes one of the modules as having multiple discreet components:
two gallium arsenide (GaAs) transistors, fifteen capacitors, and eight thick film resistors. (At page 2);
In addition to these thick-film passive and semiconductor devices, the module also contains certain other “discrete components,” such as capacitors. (At page 5)
As above, the lack of complete evidence on all of the power modules is a bar to granting protestant’s claim for microassemblies. Protestant notes several types of discreet components within one of the modules and says that all the connections among the components are printed on the substrate. The evidence is not clear as to whether the interconnections are all printed on the board before the discrete elements are plugged into the board, or whether there are integrated circuits made up of discrete components that are then laid down and connected to each other.
Moreover, with a variety of passive and active elements, the evidence states that the power module amplifies modulated signals and transmits them with required output within a cellular phone. This information alone shows that there are at least two functions occurring within the module. The EN language set forth above indicates that discrete components, let alone microassemblies, having multiple electrical functions are outside the scope of the term electronic microassemblies. Therefore, the subject UHF power modules are not classifiable as a microassembly under subheading 8542.50, HTSUS.
HQ 955019 (November 19, 1993) stated in pertinent part, as follows:
Parts which are not themselves goods included in any of the headings of chapters 84 or 85 are to be classified with the machine or machines of those headings with which they are solely or principally used. Section XVI, Note 2, HTSUS. For tariff purposes, goods may be considered parts if they are integral, constituent or component parts of a larger article, without which the larger article will not function as that article…. However, we have also ruled that goods may be considered to be parts if they promote the safe or efficient operation of the article with which they are used.
Pursuant to the information provided by the protestant, the principal or sole use of the UHF power module is as a part for cellular telephones. Therefore, because the power modules use is dedicated as a part for an apparatus of heading 8525 to 8528, its proper classification is in heading 8529, not heading 8542. See HQ 957961 (June 9, 1995); HQ 961050 (May 1, 2000). Therefore, the UHF power modules are classifiable in subheading 8529.90.99, HTSUS, which provides for parts suitable for use solely or principally with the apparatus of headings 8525 to 8528, other.
HOLDING:
In accordance with the above discussion, the UHF power modules are classifiable in subheading 8529.90.99, HTSUS, which provides for parts suitable for use solely or principally with the apparatus of headings 8525 to 8528, other.
The six entries were properly reliquidated insofar as Bulletin notice of reliquidation was posted within 90 days of the original liquidation of these entries.
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, 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division