Revocation of NY R04974, dated October 23, 2006; Classification of an Mobile RF Amplifier Module

HQ H004105 May 8, 2009 CLA-2 OT:RR:CTF:TCM H004105 KSH CATEGORY: Classification TARIFF NO.: 8517.62.0050 Myron P. Barlow, Esq. Barlow & Associates 312 Third Street Annapolis, MD 21403 RE: Revocation of NY R04974, dated October 23, 2006; Classification of an Mobile RF Amplifier Module Dear Mr. Barlow: This is in response to your letter, dated November 17, 2006, on behalf of your client, RF Micro Devices, Inc., concerning the classification of an RF (radio frequency) power amplifier module under the Harmonized Tariff Schedule of the United States (“HTSUS”). You have requested reconsideration of New York Ruling Letter (“NY”) R04974, dated October 23, 2006, in which the National Commodity Specialist Division of U.S. Customs and Border Protection (CBP) classified the RF power amplifier module in subheading 8543.89.92, HTSUS, as an electric machine or apparatus, having individual functions, not specified or included elsewhere in Chapter 85. The applicable text to subheading 8543.89.92, HTSUS, has been moved to subheading 8543.70, HTSUS, effective February 3, 2007. You contend that the RF power amplifier module is provided for in heading 8529.90.99, HTSUS, as other apparatus for the transmission or reception of voice, images or other data. Prior to 2007, cellular phone amplifiers were classified in heading 8525, HTSUS or heading 8529, HTSUS. See HQ 962909, dated May 20, 2000. 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 The proclaimed changes are effective for goods entered or withdrawn from warehouse for consumption on or after February 3, 2007.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 Proclamation 8097, 72 FR 453, Volume 72, No. 2 (January 4, 2007). Cellular phones and parts thereof of headings 8525, HTSUS, and 8529, HTSUS, were transferred to heading 8517, HTSUS (2007). We have reviewed NY R04974 and participated in a telephone conference with you and a member of my staff. We have determined that NY R04974 is in error. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on January 15, 2009, in Volume 43, Number 4, of the Customs Bulletin. CBP received one comment in support of the notice. FACTS: The merchandise at issue is a mobile handset RF power amplifier module, identified as part number RF3146 (RF3146). It is designed to be installed into Global System for Mobile Communications (GSM) cellular phones. You state the RF3146 is sold to GSM cellular phone manufacturers and is incorporated into the cellular phone during the manufacturing process. You also explain that the RF3146 is necessary for the functioning of the cellular phones as the phones cannot operate without it. See www.rfmd.com. The RF3146 amplifies four radio frequency bands, provides integrated power control circuitry, selects the proper band to transmit the signal and filters the amplified signal to remove unwanted energy. The RF3146 contains a silicon CMOS and two Gallium Arsenide chips and is comprised of a printed circuit board, two resistors and three connectors. It is packaged in a 7x7mm Lead Frame Module™ packaging technology. You state that the packaging technology allows RF Micro Devices, Inc., to manufacture extremely small units to better fit a cellular phone. ISSUE: Whether the RF3146 is classified in heading 8517, HTSUS, as an other apparatus for the transmission or reception of voice, images or other data, or in heading 8543, HTSUS, as an electric machine or apparatus, having individual functions, not specified or included elsewhere in Chapter 85. 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 2008 HTSUS provisions under consideration are as follows: 8517 Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528; parts thereof: * * * Other apparatus for transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network): * * * 8517.62.00 Machines for the reception, conversion and transmission or regeneration of voice, images or other data, including switching and routing apparatus: ….. * * * 8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, parts thereof: * * * 8543.70 Other machines and apparatus: * * * Other: * * * Other: * * * 8543.70.96 Other….. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Heading 8517 covers electrical apparatus for the transmission or reception of data between two points, regardless of the type of signal (i.e., analog or digital) or distance transmitted. EN 85.17 states, in pertinent part, the following: This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in a wired network or by electromagnetic waves in a wireless network. The signal may be analogue or digital. The networks, which may be interconnected, include telephony, telegraphy, radio-telephony, radio-telegraphy, local and wide area networks. * * * (D)  Apparatus for telegraphic communication other than facsimile machines of heading 84.43. These apparatus are essentially designed for converting characters, graphics, images or other data into appropriate electrical impulses, for transmitting those impulses, and at the receiving end, receiving these impulses and converting them either into conventional symbols or indications representing the characters, graphics, images or other data or into the characters, graphics, images or other data themselves.   * * * The EN to heading 8543, HTSUS, provides in relevant part, the following: This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90. We note that by the terms of the headings, if the instant merchandise is described by the terms of heading 8517, HTSUS, it cannot be classified in heading 8543, HTSUS, as it is specified elsewhere in the Chapter. The EN to heading 8543, HTSUS, supports this view. The RF power amplifiers are used in cellular phones to amplify and transmit radio frequency signals. Radio frequency transmission of an electrical signal requires corresponding power amplification for the intended transmission range. See www.electronics-manufacturers.com. The RF power amplifier achieves the power amplification by producing, from the input signal, an output signal having an increased magnitude. Id. The transistors and integrated circuitry filter the signal or provide impedance matching at a particular operating frequency. Id. As the RF power amplifier is an electrical apparatus for the transmission or reception of data between two points, it is expressly provided for in heading 8517, HTSUS. It is used to convert data into electrical impulses and transmit that impulse. It is used to amplify and transmit RF signals to a cellular tower in order to enable the user to successfully complete calls. Insofar as the RF power amplifier has an individual function which is otherwise provided for in Chapter 85, it cannot be classified in heading 8543, HTSUS. HOLDING: By application of GRI 1, the RF power amplifier module is classified in heading 8517, HTSUS. It is specifically provided for in subheading 8517.62.0050, HTSUSA (annotated), which provides for: “Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528; parts thereof: Other apparatus for transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network): Machines for the reception, conversion and transmission or regeneration of voice, images or other data, including switching and routing apparatus: …..Other…..” The 2008 column one, general rate of duty is “Free”. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov. EFFECT ON OTHER RULINGS: NY R04974, dated October 23, 2006, is revoked. In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division