CLA-2 CO:R:CV:V 544147 DH

Irving W. Smith, Jr., Esq.
1331 Pennsylvania Avenue, N.W.
Suite 1200F
Washington, D.C. 20004

RE: Reconsideration of Internal Advice Regarding the Dutiability of Photomasks

Dear Sir:

This is in response to your letter of June 3, 1987, requesting a review of Headquarters Ruling Letter (HRL) 543889, dated May 12, 1987.

In this ruling, we held that a photomask, which is used in the transfer of integrated circuitry patterns onto silicon wafers, is an assist within the meaning of section 402(h)(1)(A)(ii) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C. 1401). Further, we concluded that the value of the assist is its cost of production which included the engineering and development costs incurred by the importer in producing the photomask.

FACTS:

You have provided additional information upon which to base this reconsideration. You state that under the current processing the photomask does not come into contact with either the silicon wafer or the photoresist coating on the silicon wafer. The image is projected onto the photoresist by ultraviolet light. You state that the photomask merely transfers the pattern (technical know-how) of the mask to the photoresist plastic material on the wafer. You allege that the transfer of the image does not cause any physical change in the silicon wafer and that the image actually transferred is not the same as the image on the photomask in that it will undergo changes in length, width, and rounding of any corners during the developing process (washing with solvent) of the photoresist.

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ISSUES:

Does the photomask fall within the definition of an assist under section 402(h)(1)(A)(ii)?

If the photomask is determined to be an assist, is the design and engineering work performed in the United States to be included in the value?

LAW AND ANALYSIS:

As explained in Headquarters Ruling Letter 543889, the definition of the term "assists" in section 402(h)(1)(A) specifies those items or services which are treated as assists when supplied directly or indirectly to the buyer of imported merchandise, free of charge or at a reduced cost, for use in connection with the production or the sale for export to the United States of the imported merchandise. Included in these items or services are "tools, dies, molds, and similar items used in the production of the imported merchandise" pursuant to section 402(h)(1)(A)(ii).

We have stated in TAA No. 54, dated November 12, 1982, that a mold is ordinarily perceived as an item which gives final shape and form to the manufactured article. You contend that since the photomask does not come into contact with the photoresist coated wafer that the photomask can not give final shape and form to the imported product.

The fact that the image of the photomask is transferred to the photoresist coated wafer by projection rather than by actual physical contact is immaterial. The mask is still used directly in the manufacture of the article, in the same way that a mold is used. We believe that the differences between these two methods is insignificant in the determination of whether or not the photomask can be considered an assist. We are also of the opinion that Headquarters Ruling Letters 542936, dated November 12, 1982 ("mother disks") and 542625, dated January 18, 1982 ("working films") are not analogous to this situation. In both those rulings, an intermediate article (a metal stamper and a printing plate, respectively) was used to transfer the information from the "design" article (mother disk and working film) to the final product. In this case, the photomask itself is used; there is no intermediate article.

You also contend that the engineering and development costs related to the photomask should not be included in the value of the assists furnished the foreign producer in light of the holding in TAA No. 12, dated November 25, 1980.

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In TAA No. 12, the importer provided design work to a manufacturer in the United States which produced "bare" circuit boards, then delivered them to the importer. These boards were then shipped with other components to be assembled in Mexico.

We held under those facts that the boards were assists as defined in section 402(h)(1)(A)(i) of the TAA, as materials, components, parts and similar items incorporated in the imported merchandise. The value of the assist was determined to be based upon the price of acquisition since it was acquired by the importer from an unrelated seller. We referred to the Statement of Administrative Action pertaining to materials, components, parts, and similar items incorporated in the imported merchandise in drawing this conclusion. The Statement of Administrative Action provides:

If the assist was acquired by the importer from an unrelated seller, the value of the assist is the cost of acquiring it. If the element was produced by the importer or person related to him, its value would be the cost of producing it. The value shall include transportation costs to the place of production. (emphasis added)

The cost of acquiring the "bare" circuit boards from the unrelated U.S. seller only included the price paid by the buyer to the manufacturer without the additional cost of the design work since it was the service of manufacturing the "bare" circuit boards which was purchased and not the design work.

Under the present situation, the importer has developed the design work and manufactured the mold from the design work. Therefore, the mold would be valued based upon the costs of producing the mold including the transportation costs to the place of production. Included within these costs is the cost of the design work undertaken within the United States. The Statement of Administrative Action regarding tools, dies, molds or other similar items used in the production of the imported merchandise provides:

If the assist was acquired by the importer from an unrelated seller, the value of the assist is the cost of acquiring it. If the element was produced by the importer or person related to him, its value would be the cost of producing it.... (emphasis added)

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In accordance with section 402(h)(1)(A)(iv), it is the policy of the Customs Service not to duty services performed in the United States assuming that section is applicable. However, this is not the case in either TAA No. 12 or the present situation. The items being valued in these cases fall under section 402(h)(1)(A)(i) and 402(h)(1)(A)(ii) of the TAA and are therefore valued pursuant to their specific provisions in the Statement of Administrative Action.

Therefore, we uphold our conclusion in Headquarters Ruling No. 543889, that the value of the assist is the cost of production which includes the engineering and development costs incurred in the United States by the importer in producing the photomask.

HOLDING:

We conclude that the photomask constitutes a mold under section 402(h)(1)(A)(ii). Further, we conclude that the design and engineering work performed in the United States by the importer is to be included in the cost of production.


Sincerely,

Harvey B. Fox
Director, Office of
Regulations and Rulings