CLA-2 OT:RR:CTF:TCM H079395 HkP
Deborah B. Stern, Esq.
Sandler, Travis & Rosenberg, P.A.
Attorneys at Law
5200 Blue Lagoon Drive
Miami, FL 33126-2022
RE: Modification of HQ H070862; Atmel expansion kit (STK600-TQFP64)
Dear Ms. Stern:
This is in response to your letter dated October 5, 2009, on behalf of Atmel Corporation (“Atmel”), requesting reconsideration of Headquarters Ruling Letter (HQ) H070862, issued to your client on September 1, 2009. HQ H070862 concerned the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Atmel starter kits, evaluation kits, and expansion kits for microcontrollers. Relevantly, U.S. Customs and Border Protection (CBP) classified the components of the expansion kit, the STK600-TQFP64, in heading 8534, HTSUS, (printed circuits) and in heading 8542, HTSUS (electronic integrated circuits). You believe that HQ H070862 is incorrect only as it relates to the classification of the expansion kit.
FACTS:
In HQ H070862 the STK600-TQFP64 kit was described as follows:
The kit is an expansion module for the STK600 kit. The package contains a socket board (STK600-TQFP64) and three adapter (routing) boards (STK600-RCO64M-9, STK600-RCO64M-10, STK600-RCO64U-17) for 64-pins TQFP 0.8mm pitch devices, and an AVR microcontroller to be inserted into the socket on the socket board.
In your submission you have brought to our attention that the routing boards in the kit are populated with “configurable 2-input logic gates” and that the socket board contains a transistor.
ISSUE:
Whether the STK600-TQFP64 is classified under heading 8473, HTSUS, as a printed circuit assembly.
Whether the STK600-TQFP64 is classifiable as a set by application of GRI 3(b).
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
8473 Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of heading 8469 to 8472:
8473.30 Parts and accessories of the machines of heading 8471:
Not incorporating a cathode ray tube:
Printed circuit assemblies …..
8534.00.00 Printed circuits….
8542 Electronic integrated circuits; parts thereof:
Electronic integrated circuits:
8542.31.0000 Processors and controllers, whether or not combined with memories, converters, logic circuits, amplifiers, clock and timing circuits, or other circuits ….
The Legal Notes to Section XVI, HTSUS, in which chapters 84 and 85 are located, provides in pertinent part:
2. Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
(a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate…[.]
Additional U.S. Note
1. For the purposes of this section, the term "printed circuit assembly" means goods consisting of one or more printed circuits of heading 8534 with one or more active elements assembled thereon, with or without passive elements. For the purposes of this note, "active elements" means diodes, transistors and similar semiconductor devices, whether or not photosensitive, of heading 8541, and integrated circuits of heading 8542.
Note 5 to Chapter 85 provides, in pertinent part:
For the purposes of heading 8534 "printed circuits" are circuits obtained by forming on an insulating base, by any printing process (for example, embossing, plating-up, etching) or by the "film circuit" technique, conductor elements, contacts or other printed components (for example, inductances, resistors, capacitors) alone or interconnected according to a pre-established pattern, other than elements which can produce, rectify, modulate or amplify an electrical signal (for example, semiconductor elements).
The term "printed circuits" does not cover circuits combined with elements other than those obtained during the printing process, nor does it cover individual, discrete resistors, capacitors or inductances. Printed circuits may, however, be fitted with non-printed connecting elements.
You argue that the boards in the kit include active components (the socket boards contain transistors and the routing boards contain logic gates) and are therefore not printed circuits of heading 8534, HTSUS, because as defined in Note 5 to Chapter 85, “printed circuits” do not include active components. Generally, “active” electronic components are those that are required to be powered in order to work, such as transistors or amplifiers. See, for e.g., “Electronic components”, http://www.st-andrews.ac.uk/~jcgl/Scots_Guide/ info/comp/comp.htm. Note 5 to Chapter 85, HTSUS, specifically excludes semiconductor and other elements that can produce, rectify, modulate or amplify an electrical signal (i.e., active elements (e.g., transistors)) from the definition of printed circuits that it provides for heading 8534, HTSUS.
The socket board contains a transistor and the routing boards contain logic gates, which are made up of transistors and resistors. As the boards at issue all contain semiconductor elements (transistors), they are excluded from classification in heading 8534, HTSUS, because they do not meet the definition of printed circuits provided in Note 5 to Chapter 85, HTSUS.
You suggest that the correct classification of the boards is under heading 8473 (8473.30.11), HTSUS, as “parts and accessories of the machines of heading 8471” because the STK600 with which they are used is classified under heading 8471, HTSUS. See HQ H070862 (Sept. 1, 2009). “[A]n imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Bauerhin Technologies v. United States (“Bauerhin”), 110 F.3d 774, 779 (citations omitted), (Fed. Cir. 1997). An accessory is a subordinate article that bears “a direct relationship to the primary article that it accessorizes.” Rollerblade Inc. v. United States (“Rollerblade”, 282 F. 3d 1349, 1352 (citations omitted) (Fed. Cir. 2002), citing with approval the Court of International Trade’s consultation of the common (dictionary) meaning of the term “accessory”. See id.; 116 F. Supp. 2d 1247, 1253 (Ct. Int’l Trade 2000).
We find that because the routing boards have been designed so that their pinout is specific to the STK600, the boards are “parts” of the STK600 kit for classification purposes. See Bauerhin. As the boards are not included in any of the headings of chapter 84 or 85, they are classified under heading 8473 (8473.30.11), HTSUS, as parts of the machines of heading 8471 (printed circuit assemblies), per Note 2(b) and Additional U.S. Note 1 to Section XVI, HTSUS.
The socket board has been specially designed to work with the routing boards but not with the STK600 itself. As such, it is not a part of the STK600 but is an accessory to it. See Rollerblade. Because the socket board is not described with greater specificity elsewhere in the HTSUS, it is classified under heading 8473, HTSUS, as an accessory to a machine of heading 8471, See Additional U.S. Rule of Interpretation 1(c) (“a provision for … ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory”). It is specifically provided for in subheading 8473.30.11, HTSUS, as a printed circuit assembly, per Additional U.S. Note 1, Sec. XVI, HTSUS.
You argue that the socket board and the microcontroller should be treated as an unassembled printed circuit assembly of subheading 8473.30.11, HTSUS, by application of GRI 2(a) because the microcontroller is only packaged separately for safe handling in transport and is intended to be inserted into the socket board upon importation. GRI 2(a) provides, in relevant part, that “any reference in a heading to an article shall be taken to include a reference to that article … complete or finished … entered unassembled or disassembled.”
Additional U.S. Note 1 to Section XVI, HTSUS, defines a printed circuit assembly as “one or more printed circuits of heading 8534 with one or more active elements assembled thereon”. However, the separately packaged microcontroller is not “assembled” onto anything. Further, as you have successfully argued, the socket board is not a printed circuit of heading 8534, HTSUS, because it contains a transistor – a semiconductor element. See Note 5 to Chapter 85. The transistor makes the board a fully finished printed circuit assembly. See Additional U.S. Note 1, Sec. XVI. The EN to GRI 2(a) explains that “unassembled components of an article which are in excess of the number required for that article when complete are to be classified separately.” See EN VII.
At GRI 1, there is no heading that describes these kits in their entirety. Specifically, the boards are classified under heading 8473, HTSUS, and the microcontroller is classified under heading 8542, HTSUS, which provides for “electronic integrated circuits” because they are integrated circuit processors combined with memory (see full description in HQ H070862). See Note 8(b) to Section XVI, HTSUS, and EN 85.42 (“Electronic integrated circuits are devices having a high passive and active element or component density, which are regarded as single units…. Electronic integrated circuits include memories … microcontrollers….”). Therefore, resort must be made to GRI 3, which is the applicable rule for goods that are classifiable under two or more headings. GRI 3(b) provides, in relevant part, that “goods put up in sets for retail sale … shall be classified as if they consisted of the … component which gives them their essential character.”
The components of the kit at issue, which are classifiable in different headings, together expand the programming capabilities of the STK600 and are imported packaged together for retail sale. The kit therefore conforms to the description of a retail set provided in EN X to GRI 3(b) and is considered a GRI 3(b) set for classification purposes.
As stated by the Court of International Trade in Structural industries v. United States, 360 F. Supp. 2d 1330, 1336 (citations omitted) (2005), “the essential character of an article is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” See also Conair Corporation v. United States, 29 Ct. Int’l Trade, 888, 895 (citations omitted) (2005), (discussing “the concept of ‘essential character’ found in GRI 3(b)”). Based on their quantity and role in relation to the use of the kit, we find that the routing and socket boards impart the essential character of the kit because they are the means by which the programming function of the STK600 is expanded. See EN (VIII) to GRI 3(b). As such, we find that the kit is a set classified under subheading 8473.30.11, HTSUS.
HOLDING:
By application of GRI 3(b), the STK600-TQFP64 expansion kit is classified under heading 8473, HTSUS. It is specifically provided for in subheading 8473.30.11, HTSUS, which provides for: “Parts and accessories … suitable for use solely or principally with machines of headings 8469 to 8472: Parts and accessories of the machines of heading 8471: Not incorporating a cathode ray tube: Printed circuit assemblies.” The 2009 column one, general rate of duty is Free.
EFFECT ON OTHER RULINGS:
HQ H070862, dated September 1, 2009, is modified only with respect to the classification of the Atmel STK600-TQFP64 expansion kit. The classification of the other items described therein is unchanged.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division