CLA-2 CO:R:C:M 957189 KCC
Dr. Bo Denysyk
Global USA, Inc.
Suite 650
2121 K Street, N.W.
Washington, D.C. 20037
RE: Anti-reflection coated silicon wafer; 3818.00.00; EN 38.18; doped silicon wafer; solar
panel; Article 509; NAFTA; T.D. 94-1; 19 CFR 181.92(b)(5) and (6)
Dear Dr. Denysyk:
This is in regards to your letter dated September 16, 1994, to Customs in New York,
on behalf of Kyocera International, Inc., concerning the country or origin, applicability of the
North American Free Trade Agreement (NAFTA) and tariff classification of solar panels
under the Harmonized Tariff Schedule of the United States (HTSUS). A flow diagram of the
production process was submitted for our examination.
FACTS:
Kyocera presently manufactures its solar panels in Japan. However, it is considering
establishing a solar panel manufacturing plant in the U.S. For the proposed manufacturing
operation, Kyocera will import Japanese manufactured multi-crystalline silicon wafers. The
manufacturing operation in Japan consists of:
1. silicon wafer fabrication;
2. surface treatment;
3. pn junction formation;
4. back n type layer etching;
5. back surface field formation; and
6. anti-reflection coating.
After importation into the U.S., the anti-reflection coated silicon wafers will be further
manufactured into a complete solar panel. The manufacturing operations to be performed in
the U.S. entail:
1. patterning;
2. metalization;
3. solder coating;
4. cell inspection;
5. lead wiring;
6. string formation;
7. lamination;
8. curing;
9. framing;
10. joint box fixing; and
11. inspection.
The complete solar panels will then be exported to Mexico and/or Canada.
ISSUE:
I. What is the tariff classification of the silicon wafer with anti-reflection coating under
the HTSUS?
II. What is the tariff classification of the completed solar panels under the HTSUS?
III. Are the completed solar panels eligible for preferential tariff treatment under the
NAFTA when exported from the U.S.?
IV. What are the country of origin and the proper marking requirements applicable to the
solar panels when exported from the U.S.?
LAW AND ANALYSIS:
Tariff Classification
The classification of merchandise under the HTSUS is governed by the General Rules
of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes,
classification shall be determined according to the terms of the headings and any relative
section or chapter notes...."
You contend that the imported silicon wafer with anti-reflection coating is classified
under subheading 3818.00.00, HTSUS, as a doped silicon wafer, or under subheading
8541.90.00, HTSUS, as a part of a semiconductor device. The competing subheadings are as
follows:
3818.00.00 Chemical elements doped for used in electronics, in the form of discs, wafers or
similar forms; chemical compounds doped for use in electronics....
8541.90.00 Diodes, transistors and similar semiconductor devices; photosensitive
semiconductor devices, including photovoltaic cells whether or not assembled in
modules or made up into panels; light-emitting diodes; mounted piezoelectric
crystals; parts thereof...Parts.
In understanding the language of the HTSUS, the Harmonized Commodity Description
and Coding System ENs may be utilized. The ENs, although not dispositive, provide a
commentary on the scope of each heading of the HTSUS and are generally indicative of the
proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August
23, 1989). EN 38.18 (pg. 539) states, in part, that heading 3818, HTSUS, covers:
(1) The chemical elements of Chapter 28 (for example, silicon and selenium) doped
with, for example, boron or phosphorus, generally in a proportion of the order
of one part per million, provided they are in the form of discs, wafers or
similar forms. When in forms worked as drawn, or in the form of cylinders or
rods, they are classified in Chapter 28....
Those more extensively worked (e.g., by selective diffusion) fall in heading 85.41 as
semiconductor devices (emphasis in original).
We are of the opinion that the imported silicon wafer with anti-reflection coating is not
classifiable under subheading 3818.00.00, HTSUS. At importation the silicon wafer is not
merely a doped silicon wafer, but is more extensively worked by the surface treatment, pn
junction formation, back n type layer etching, back surface field formation and anti-reflection
coating operations performed in Japan. Based on the manufacturing operation performed in
Japan, we are of the opinion that the silicon wafer is classified under subheading 8541.90.00,
HTSUS, as part of a semiconductor device.
The U.S. Customs Service is not authorized to issue an advance ruling to you with
regards to the tariff classification of the completed solar panels under the HTSUS. Pursuant to
Part 177, Customs Regulations (19 CFR Part 177), Customs may issue an advance tariff
classification ruling letter for prospective transactions of articles entering the U.S. As you
have requested a tariff classification ruling for articles to be manufactured in the U.S. and then
exported to Canada or Mexico, we cannot properly issue a prospective ruling pursuant to 19
CFR Part 177.
NAFTA
Additionally, we cannot issue a NAFTA advance ruling letter pursuant to 181.92
(b)(5) and (6), Customs Regulations (19 CFR 181.92(b)(5) and (6)), which sets forth who
may request a NAFTA advanced ruling and which issues may be covered by the NAFTA
ruling. As presented, your request does not fall within the subject matter of 19 CFR
181.92(b)(5) and (6). As you will be exporting completed solar panels to Mexico and/or
Canada, your should direct your NAFTA inquiry to either government. You may contact the
Mexican NAFTA Help Desk at (525) 211-3545, or the Canadian NAFTA Help Desk at (613)
941-0965 for information concerning Mexico's and Canada's procedures for Advance NAFTA
Rulings.
HOLDING:
The silicon wafer is classified under subheading 8541.90.00, HTSUS, as part of a
semiconductor device. Articles classified under this tariff provision enter the U.S. duty free.
Sincerely,
John Durant, Director
Commercial Rulings Division