CLA-2 RR:CR:GC 960554 DWS

Port Director of Customs
33 New Montgomery Street, #1501
San Francisco, CA 94105

RE: Protest 2809-96-101144; Components of Physical Vapor Deposition Apparatus

Dear Port Director:

The following is our decision regarding Protest 2809-96-101144 concerning your action in classifying and assessing duty on components of physical vapor deposition (PVD) apparatus under the Harmonized Tariff Schedule of the United States (HTSUS).

In a facsimile letter dated August 7, 1998, counsel for the protestant withdrew from the protest the issue regarding the classification of parts for the physical vapor deposition apparatus.

FACTS:

The merchandise consists of several entries of components two of which containing components of an electron beam machine (Model 1850-634, Beta V) and four of which containing components of a sputter deposition machine (Model FBR 1400 SP-5C, Beta III). Based upon a review of the entry documents, the bulk of the components making up the electron beam machine and the sputter deposition machine were contained within one entry for each machine.

In its complete form, the sputter deposition machine is a vacuum deposition apparatus incorporating thermal evaporation and sputtering deposition sources capable of physical deposition of various metals on flexible base materials, such as polyimide, polyester, or other polymeric substrates. It possesses multiple processing subchambers, including multiple sputtering sources for production of monolithic or graded adhesion layers and/or a copper adhesion flash, and an indirectly heated resistive evaporation source which can attain the requisite temperatures for the evaporation of copper. This source is constructed of materials compatible with copper evaporation, and normally operates at a crucible temperature of 1425 to 1470 degrees Celsius (C). Additional thermal sources are also installed for the evaporation of aluminum materials.

In its complete form, the electron beam machine is a vacuum deposition apparatus incorporating electron beam deposition sources capable of physical deposition of various metals on flexible base materials, such as polyimide, polyester, or other polymeric substrates. It also possesses multiple subchambers.

In an affidavit on behalf of the protestant, it is stated that the two machines:

belong to a class of large scale roll-to-roll vacuum deposition apparatus the principle use of which include the manufacture and production of thin film flexible printed circuits for the automotive, electronics, computer, and communications industries, and for the production of optically (laser) readable disks.

The PVD apparatus consists of three main sections; the vacuum chamber with the evaporation source, the loading and unloading apparatus, and the pumping group. Key equipment within the article are of U.S. origin in order to facilitate the maintenance and repair or replacement of these items. The equipment of U.S. origin include: 1) two vacuum pumps; 2) six diffusion pumps; 3) two cryogenic refrigeration systems; 4) eight source evaporators; 5) standalone control units ; 6) power supplies; 7) two Shrader Octal feed- throughs; 8) 16 Telemark high voltage feed-throughs; and 9) 120 feet of high voltage electrical cable. The vacuum and diffusion pumps were used to create the high vacuum environment inside the chamber so that the evaporated metals can bond to the surface of the material to be coated. The two Kinney KT 505-LP vacuum pumps were connected to the PVD apparatus via piping by being bolted to flanges in the piping. They were also connected to their respective electrical systems and painted to match the color of the vacuum chamber. After testing, they were detached from the PVD apparatus for shipment to the U.S., although they remained attached to their respective rotary pump frames.

The six Varian HS20 diffusion pumps were attached to the PVD apparatus in Great Britain. The processing included attachment to the PVD apparatus by bolting the pumps to their respective chamber manifolds and piping system. The pumps were also connected to their respective electrical systems and painted to match the color of the vacuum chamber. Four of the diffusion pumps were later disassembled for shipment back to the U.S.

The two Polycold refrigeration units remove water vapor from inside the chamber. They were connected to the PVD apparatus by two copper refrigeration coils, which were mounted inside the vacuum chamber and connected to the refrigeration units in Great Britain by piping.

The eight sets of high voltage feed-through's and 120 feet of high voltage cable provided the high voltage electrical connection between the Temescal EB power supplies, and the Temescal Electron Beam source evaporators which were mounted inside the vacuum chamber in Great Britain. The cable was cut to length and used to connect the evaporators to the high voltage feed-throughs abroad. The high voltage feed-throughs's were used "as is" and were simply inserted into their respective ports leading to the vacuum chamber and bolted in place abroad. The feed-through's allow the electrical connection between the external EB power supplies and the EB source evaporators inside the chamber while maintaining the integrity of the vacuum. The feed-throughs remain attached to the vacuum chamber after testing.

The EB source evaporators were bolted to individual support plates and to a frame on the floor of the vacuum chamber in Great Britain.

After testing, the power supplies and control units were disconnected for shipment to the U.S. With regard to the power supplies, control units and the two cryogenic refrigeration units, they were only assembled abroad and then disassembled. The protestant states that "nothing was done" to these components; there were no holes drilled or any other work done on these components abroad other than the assembly and disassembly.

In all instances, the U.S. origin articles were attached to the PVD system by bolts abroad, so as to allow the units to be readily removed for maintenance or repair.

Once the construction of the PVD apparatus was completed abroad, the vacuum system was tested by powering up the system and checking for leaks in the vacuum chamber and for the proper operation of the pumps.

After testing, the system was partially disassembled for shipment. The entire system was then shipped to the U.S. and installed at the importer's facilities in the U.S.

The importer states that in each instance, the U.S.-produced articles were assembled in or connected to the PVD system in the condition in which they were received in Great Britain.

The merchandise was entered on January 12, February 12, 14, 19, and 21, 1996, under subheading 8479.89.85, HTSUS, as machines for production and assembly of diodes, transistors, and similar semiconductor devices and electronic integrated circuits, or machines for the manufacturing of video laser discs. The entries were liquidated on May 31, June 7, and 21, 1996, under subheading 8479.89.95, HTSUS, as other machines having individual functions, not specified or included elsewhere in chapter 84, HTSUS. The protest was timely filed on August 27, 1996.

ISSUE:

Whether the bulk of components for the creation of the electron beam machine contained in one of the two entries impart the essential character of a complete electron beam machine.

Whether the bulk of components for the creation of the sputter deposition machine contained in one of the four entries impart the essential character of a complete sputter deposition machine.

If so, whether the components imparting the essential character of each complete machine are classifiable under subheading 8479.89.85, HTSUS, as machines for production and assembly of diodes, transistors, and similar semiconductor devices and electronic integrated circuits, or machines for the manufacturing of video laser discs, or under subheading 8479.89.95, HTSUS, as other machines having individual functions, not specified or included elsewhere in chapter 84, HTSUS.

Whether the equipment of U.S. origin is eligible for preferential duty treatment under subheading 9802.00.80, HTSUS, subheading 9801.00.1025, HTSUS, or subheading 9802.00.50, HTSUS.

LAW AND ANALYSIS:

CLASSIFICATION

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The 1996 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:

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.

8479.89.95 Other.

* * * * * * * * *

We must first determine whether the components in the entries containing the bulk of components making up the sputter deposition and electron beam machines impart the essential character of complete machines. GRI 2(a) states that:

GRI 2(a) states that:

[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

Based upon an analysis of the entry documents, it is our position that the components in the two entries mentioned above impart the essential character of each of the subject machines. Therefore, we must now ascertain the proper classification of complete electron beam and sputter deposition machines under the HTSUS.

Because the complete PVD apparatus are machines not described elsewhere in chapter 84, HTSUS, they meet the terms of heading 8479, HTSUS. However, based upon the information provided, as the subject machines are used for the production of flexible printed circuits and not diodes, transistors, or similar semiconductor devices and integrated circuits, the machines are precluded from that portion of subheading 8479.89.85, HTSUS.

Additional U.S. Rule of Interpretation 1(a), HTSUS, states:

1. In the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

GRI 6 states that:

[f]or legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

GRI 6 allows us to apply additional U.S. rule of interpretation 1(a) at the subheading level. As stated previously, it has been stated on behalf of the protestant that the subject machines are principally used for the production of flexible printed circuits and laser disks. However, machines for the production of flexible printed circuit boards and video disks are classifiable under subheadings 8479.89.95 and 8479.89.85, HTSUS, respectively. The protestant has not demonstrated that the machines are principally used for the manufacture of laser disks. Also, it is our understanding that the machines, in their complete form, do not possess certain components necessary for laser disk production (i.e., robotic handlers). Consequently, it is our position that the machines are classifiable under subheading 8479.89.95, HTSUS, and, in accordance with GRI 2(a), the components contained in the entries imparting the essential character of each complete machine are also classifiable under subheading 8479.89.95, HTSUS.

Subheadings 9801.00.10, 9802.00.50, and 9802.00.80

The importer argues that the following articles qualify for subheading 9802.00.80, HTSUS, treatment: 1) six diffusion pumps; 2) two vacuum pumps; 3) two Shrader Octal feed-throughs; 4) eight source evaporators; 5) 16 high voltage feed-throughs; and 6) 120 feet of high voltage electrical cable.

The importer contends that the power supplies, control units and cryogenic refrigeration units qualify for treatment under subheading 9801.00.1025, HTSUS.

The importer further contends that if the four diffusion pumps which were disassembled from the PVD apparatus for shipment back to the U.S. do not qualify for treatment under subheading 9802.00.80, HTSUS, they qualify for treatment under subheading 9802.00.50, HTSUS.

U.S. Note 2(a), subchapter II, Chapter 98, HTSUS, provides that any product of the U.S. which is returned after having been advanced in value or improved in condition abroad by any process of manufacture or other means shall be treated as a foreign article for duty purposes and shall be dutiable, unless exempt under a specific HTSUS provision.

1. Subheading 9802.00.80

Subheading 9802.00.80, HTSUS, provides a partial duty exemption for:

[a]rticles *** assembled abroad in whole or in part of fabricated components, the product of the U.S., which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process, such as cleaning, lubricating and painting.

All three requirements of subheading 9802.00.80, HTSUS, must be satisfied before a component may receive a duty allowance. An article entered under this tariff provision is subject to duty upon the full cost or value of the imported assembled articles, less the cost or value of the U.S. components assembled therein, upon compliance with the documentary requirements of 19 CFR 10.24. Section 10.14(a), Customs Regulations [19 CFR 10.14(a)], states in part that:

[t]he components must be in condition ready for assembly without further fabrication at the time of their exportation from the U.S. to qualify for the exemption. Components will not lose their entitlement to the exemption by being subject to operations incidental to the assembly either before, during, or after their assembly with other components.

Section 10.16(a), Customs Regulations [19 CFR 10.16(a)], provides that the assembly operation performed abroad may consist of any method used to join or fit together solid components, such as welding, soldering, riveting, force fitting, gluing, laminating, sewing, or the use of fasteners.

Operations incidental to the assembly process are not considered further fabrication operations as they are of a minor nature and cannot always be provided for in advance of the assembly operations. However, any significant process, operation or treatment whose primary purpose is the fabrication, completion, physical or chemical improvement of a component precludes the application of the exemption under subheading 9802.00.80, HTSUS, to that component. See 19 CFR 10.16(c).

Regarding the foreign assembly operations performed in this case, the information provided to us indicates that the U.S. components were attached to the system with bolts. As stated above, 19 CFR 10.16(a) states that any method used to join or fit together solid components is acceptable and specifically states that the use of fasteners is acceptable. The eight evaporators were installed inside the vacuum chamber with the electrical cable and feed-throughs. Therefore, the assembly operations performed with regard to the evaporators, feed-throughs and electrical cable are acceptable pursuant to 19 CFR 10.16. We have no information that these U.S. made components were advanced in value or improved in condition abroad except by the assembly operations or operations incidental to the assembly. In addition, these components remained in their assembled condition when imported into the U.S.

The cutting of the electrical cable to length is an operation that is incidental to the assembly process. See 19 CFR 10.16(b)(6).

The protestant states that the six diffusion and two vacuum pumps were painted to match the color of the vacuum chamber. Painting primarily intended to enhance the appearance of an article is listed as an example of an operation that is not considered incidental to the assembly process. See 19 CFR 10.16(c)(3). Since the painting operation done abroad with regard to the diffusion and vacuum pumps appears to be for the purpose of enhancing the appearance of the article, these articles are not eligible for a duty allowance under subheading 9802.00.80, HTSUS. Further, four of the diffusion pumps were completely disassembled from the PVD apparatus after testing for shipment back to the U.S. Therefore, we find that these articles were not returned in an assembled condition as required by subheading 9802.00.80, HTSUS.

Therefore, we find that only the two Shrader Octal feed-throughs, eight evaporators, 16 high voltage feed-throughs, and the 120 feet of high voltage electrical cable are entitled to a duty allowance under subheading 9802.00.80, HTSUS.

2. Subheading 9801.00.1025

The second issue raised is whether the two refrigeration systems, power supplies and control units are eligible for duty free treatment under subheading 9801.00.1025, HTSUS.

Subheading 9801.00.1025, HTSUS, provides that products of the U.S. when returned temporarily for repair, alteration, processing or the like, after having been reexported without having been advanced in value or improved in condition by any process of manufacture or other means while abroad can be entered duty free provided the documentary requirements of 19 CFR 10.1 are satisfied.

To the extent that U.S. components are totally disassembled and imported in the same condition as exported, the U.S. components would be entitled to duty free treatment under subheading 9801.00.1025, HTSUS.

The question in the instant case is whether connecting the power supplies, control units, and cryogenic refrigeration units to the PVD system is considered an advancement in value or improvement in condition. After testing, the power supplies, control units, and two cryogenic refrigeration units were disconnected from the PVD apparatus, for shipment to the U.S.

The court held in Border Brokerage Company, Inc. v. United States, 314 F. Supp. 788 (1970), that tomatoes of American origin were entitled to duty free entry under item 800.00, TSUS (the predecessor to subheading 9801.00.10, HTSUS). The tomatoes were shipped to Canada where they were unloaded, unpacked, sorted, graded by color and size, and repacked. The court stated that the test to be applied in item 800.00 cases is whether the merchandise of American origin has itself (apart from its container) been the object of advancement in value or improvement in condition while abroad.

The power supplies, control units, and two cryogenic refrigeration units which were merely connected to the PVD apparatus in Great Britain and then disconnected after testing, were not the object of advancement in value or improvement in condition. These articles returned to the U.S. in exactly the same condition as when they were exported; there were no holes drilled or any other work performed abroad other than the assembly and disassembly. Therefore, these articles are entitled to duty- free treatment under subheading 9801.00.1025, HTSUS. 3. Subheading 9802.00.50

Subheading 9802.00.50, HTSUS, provides a partial duty exemption for articles that are returned after having been exported to be advanced in value or improved in condition by means of repairs or alterations, provided that the documentary requirements of 19 CFR 10.8 are met. For qualifying articles, duty is assessed only on the cost or value of the foreign processing.

However, in circumstances where the operations abroad destroy the identity of the exported article or create a new or commercially different article, entitlement to subheading 9802.00.50, HTSUS, is precluded. See A.F. Burstrom v. United States, 44 CCPA 27, C.A.D. 631 (1956), aff'd C.D. 1752, 36 Cust. Ct. 46 (1956); Guardian Enterprises Corporation v. United States; 3 CIT 9 (1982). Additionally, entitlement to this tariff treatment is not available where the exported articles are incomplete for their intended purposes prior to their foreign processing and the foreign processing is a necessary step in the preparation or manufacture of the finished articles. Dolliff & Company, Inc. v. United States, 455 F. Supp. 618 (CIT 1978), aff'd, 599 F.2d 1015 (Fed. Cir. 1979).

The court denied a partial duty exemption in Burstrom, which involved steel ingots converted into steel slabs in Canada, in Guardian Industries, which involved annealed glass tempered in Canada, thus acquiring different characteristics, and in Dolliff & Co., which involved greige goods dyed and made into a finished fabric in Canada.

The four diffusion pumps under consideration were painted abroad, which was a finishing step in the preparation of these pumps. Since the pumps underwent a finishing operation abroad, they were not finished articles when exported from the U.S.

Accordingly, we find that the diffusion pumps are not eligible for a partial duty exemption under subheading 9802.00.50, HTSUS.

HOLDING:

In accordance with GRI 2(a), the components in the entries containing the bulk of components making up the sputter deposition and electron beam machines impart the essential character of complete electron beam and sputter deposition machines. Those components are classifiable under subheading 8479.89.95, HTSUS, as other machines having individual functions, not specified or included elsewhere in chapter 84, HTSUS. With regard to this classification issue, the protest should be DENIED.

The protest should be GRANTED with regard to the claims for a duty allowance under subheading 9802.00.80, HTSUS, with regard to 1) the two Shrader Octal feed-throughs; 2) the eight evaporators; 3) the 16 high voltage feed-throughs; and 4) the 120 feet of high voltage electrical cable. Further, the power supplies, control units, and two cryogenic refrigeration units are eligible for duty free entry under subheading 9801.00.1025, HTSUS. The protestant has furnished a declaration of the foreign shipper/ assembler and an importer's declaration which we believe satisfy the documentation requirements of 19 CFR 10.1 and 10.24.

The protest should be DENIED with respect to the six diffusion pumps and the two vacuum pumps, which are not eligible for a partial duty exemption under subheading 9802.00.80, HTSUS. The four unassembled diffusion pumps are also not eligible for a partial duty exemption under subheading 9802.00.50, HTSUS.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of this 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 the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division