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HQ H009854





June 15, 2007

CLA-2 OT:RR:CTF:TCM H009854 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8421.39.8015

Ms. Jennifer Kissner
Flextronics
305 Interlocken Parkway
Broomfield, CO 80501

RE: Classification of a fan filter unit (FFU)

Dear Ms. Kissner:

This is in regard to your electronic ruling request dated March 6, 2007, on behalf of Flextronics, requesting a classification ruling for a pre-wired fan filter unit (FFU) under the Harmonized Tariff Schedule of the United States (‘‘HTSUS’’).

FACTS:

The merchandise at issue is a pre-wired fan filter unit (FFU) used in semiconductor wafer processing. It is a component of a factory interface (FI). The FI is used to move wafers between wafer process modules. The FI is composed of a pre-wired frame

In New York Ruling (NY) N005169, dated February 7, 2007, the pre-wired frame was classified in subheading 8486.90.0000, HTSUS, which provides for: “Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; machines and apparatus specified in Note 9 (C) to this chapter; parts and accessories: Parts and accessories.” Due to insufficient information, no classification was given for the FFU. , the FFU and system components that will vary depending on custom configuration. The FFU is situated on top of the frame during the full FI integration. Power for the FFU is supplied from the factory in which it was installed. The FFU must be integrated into the FI to function. The FFU consists of a steel powder-coated frame, a sheet metal plenum, a fan, a filter and several harnesses. The fan creates a down draft while the filter removes all particles from the air entering the mini-cleanroom environment. The filter incorporates a durable UPLA grade polytetraflouroethylene media which offers high tensile strength, is resistant to damage and chemicals, is hydrophobic and will not shed. It is also boron and phosphorous free. The media area is optimized for maximum airflow.

ISSUE:

Whether the FFU is classified as a part or accessory of a machine or apparatus used in the manufacture of semiconductor boules, wafers or devices in heading 8486, HTSUS or in heading 8421, HTSUS, as filtering or purifying machinery and apparatus.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In the submission giving rise to NY N005169, you argued that the FFU was classified in heading 8479 Pursuant to title 19 United States Code, Section 3005, the HTSUS was amended to reflect changes recommended by the World Customs Organization. The proclaimed changes are effective for goods entered or withdrawn from warehouse for consumption on or after February 3, 2007. See Presidential Proclomation 8097, 72 FR 453, Volume 72, No. 2 (January 4, 2007). Heading 8486, HTSUS, was implemented to provide for machines and apparatus of a kind used solely or principally in the manufacture of semiconductors. , HTSUS, because it is a part of the FI and does not function apart from the FI. In support, you cite to Fuji Amercia Corp. v. United States, Court of International Trade (CIT) Slip. Op. 2006-116 (July 26, 2006), rehearing denied CIT Slip Op. 2006-185; Court of Appeals for the Federal Circuit Appeal pending, in which the Court of International Trade determined that chip feeders that were dedicated solely for use with chip placers were classified in subheading 8479.90.9595, HTSUS, as parts of machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter.

Heading 8486, HTSUS provides for: “Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits or flat panel displays; machines and apparatus specified in Note 9(C) to this chapter; parts and accessories.

The EN to Heading 8486, HTSUS, provides in relevant part:

(E) PARTS AND ACCESSORIES

Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading includes parts and accessories for the machines and apparatus of this heading. Parts and accessories falling in this heading thus include, inter alia, work or tool holders and other special attachments which are solely or principally used for the machines and apparatus of this heading.

Section XVI, Note 2(a), HTSUS, states:

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;

Section XVI, Note 2(b), HTSUS, states:

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. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;

The ENs for Section XVI, HTSUS, at states in relevant part:

The above rules do not apply to parts which in themselves constitute an article covered by a heading of this Section (other than headings 84.87 and 85.48); these are in all cases classified in their own appropriate heading even if specially designed to work as part of a specific machine. This applies in particular to:

(1) Pumps and compressors (headings 84.13 and 84.14).

(2) Filtering machinery and apparatus of heading 84.21.

The EN language for Section XVI Note 2, HTSUS, was cited by the Court of International Trade in Nidec Corp. v. United States, 861 F. Supp. 136 (CIT 1994), aff’d. 68 F.3d 1333 (Fed. Cir. 1995). The Nidec court, applying the EN for Section XVI Note 2, HTSUS, determined that if a good can be classified in its own heading in accordance with Legal Note 2(a), then classification as a part under Legal Note 2(b) is inappropriate. See also HQ 962946 (May 1, 2000), HQ 952026 (July 23, 1992) and HQ 963219 (February 5, 2001). Accordingly, if the FFU can be classified in its own heading in Section XVI, HTSUS, it cannot be classified in heading 8486, HTSUS, as a part.

Heading 8421, HTSUS, provides for: “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof.”

The EN to heading 8421, HTSUS, provides in relevant part:

This heading covers :

(II) Filtering or purifying machinery and apparatus for liquids or gases, other than, e.g., filter funnels, milk strainers, strainers for filtering paints (generally Chapter 73).

EN 84.21 further identifies the types of filtering machinery and apparatus included therein. Among these are filtering machinery for gases. It describes them, in relevant part, as follows:

(B) Filtering or purifying machinery, etc., for gases

These gas filters and purifiers are used to separate solid or liquid particles from gases, either to recover products of value (e.g., coal dust, metallic particles, etc., recovered from furnace flue gases), or to eliminate harmful materials (e.g., dust extraction, removal of tar, etc., from gases or smoke fumes, removal of oil from steam engine vapours).

The FFU maintains a mini clean-room environment by creating a down draft and filtering all particles entering from the air. As the FFU filters the air, it meets the terms of heading 8421, HTSUS. This conclusion is supported by NY 816790, dated December 5, 1995, in which merchandise used as a clean microenvironment for preparation of sterile injectables in pharmacy practice was classified in heading 8421, HTSUS. Note 2(a) to Section XVI, HTSUS and the EN Section XVI, specifically exclude filtering machinery and apparatus of heading 8421, HTSUS from classification in heading 8486, HTSUS. Although the FFU is specifically designed to work as part of a specific machine, it is a part which in itself constitutes an article covered by a heading of Section XVI and will be in all cases classified in its own appropriate heading. As such it is distinguishable from the chip feeders in Fuji America Corp., supra, which could not be classified elsewhere in Section XVI, HTSUS.

HOLDING:

Pursuant to the application of Section XVI, Note 2(a),the FFU is classified in heading 8421, HTSUS. It is provided for in subheading 8421.39.8015, HTSUSA, which provides for: “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof: Filtering or purifying machinery and apparatus for gases: Other: Other, Other.” The column one, general rate of duty is free.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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