CLA-2 OT:RR:CTF:TCM H237648 LWF
Port Director
Service Port—San Francisco
U.S. Customs and Border Protection
555 Battery Street, Room 319
San Francisco, CA 94111
Attn: John Gerber, Supervisory Import Specialist
RE: Request for Internal Advice; tariff classification of synthetic quartz glass substrates coated with a thin layer of chrome metal
Dear Port Director:
This is in reference to your request for Internal Advice, initiated by counsel for Hoya Corporation USA (“Hoya USA”) via letter, dated September 11, 2012. At issue is the proper tariff classification of synthetic quartz glass substrates coated with a thin layer of chrome metal under the Harmonized Tariff Schedule of the United States (HTSUS). The request for Internal Advice is sought based on Hoya USA’s assertion that the glass substrates are classified in heading 7006, HTSUS, which provides for “Glass of heading 7003, 7004, or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials.” In reaching this decision, we have considered additional information submitted by Hoya USA, via letters, dated October 18, 2012 and October 30, 2012, and an electronic communication, dated October 25, 2013, concerning the physical characteristics of the glass substrates.
FACTS:
This request for Internal Advice concerns the tariff classification of synthetic quartz glass substrates coated with a thin layer of chrome metal (the “Plates”). The Plates consist of synthetic quartz substrates manufactured by vapor-phase axial deposition (“VAD”) that are cut, ground, chamfered (edge bevel and corner), and polished to meet exact tolerances for width, length, thickness, and flatness. Prior to importation, each quartz substrate undergoes sputtering procedures, in which a chrome metal target is subjected to a plasma, resulting in the ionization of the target and the deposition of a thin film of the chrome metal on the quartz substrate. Hoya USA states that following importation into the United States, it will perform further manufacturing operations on the merchandise and will apply a photoresist layer to the Plates at a domestic facility. Hoya USA will market and sell the resulting product as “photomask blanks” for use in the manufacture of integrated circuits (“ICs”).
Lithographic photomasks are multi-layer, etched glass plate templates for the manufacture of ICs used in automatic data processing machines and other electronic devices. The term “photomask blanks” refers to multi-layer glass plates that have not yet been etched with an IC template. Typically, a photomask blank consists of three layers: a glass plate, chrome, and a photoresist. In processing which transforms a photomask blank to a photomask, the photomask blank is “etched,” that is, subjected to a carefully controlled beam of electromagnetic radiation, a laser, or an electron beam (depending on the polymers present in the photoresist) which marks the photoresist surface layer of the photomask in the desired pattern of the IC to be manufactured. The etched photomask is subsequently “developed” in etching solution, hardened, and stripped of its photoresist surface layer, resulting in a dual-layer template (or “blueprint”) of glass and chrome, to be used in defining one pattern layer in IC fabrication.
In August 2012, Hoya USA requested a meeting with U.S. Customs and Border Protection (CBP) to discuss concerns that the company had incorrectly classified the Plates in Chapter 37 under heading 3701, HTSUS, which provides for “Photographic plates and film in the flat, sensitized, unexposed, of any material other than paper, paperboard, or textiles; instant print film in the flat, sensitized, unexposed, whether or not in packs.” Representatives of Hoya USA met with CBP on August 29, 2012, during which CBP informed Hoya that the Plates—consisting of a synthetic quartz substrate with a chrome metal layer, but without a photoresist—are not described as photographic plates of heading 3701, HTSUS, and that the classification of the Plates was an appropriate matter for which to seek an Internal Advice decision. Consequently, via letter dated September 11, 2012, Hoya USA petitioned the Port of San Francisco to seek Internal Advice as to the proper classification of the Plates. On November 9, 2012, the Port submitted its request for Internal Advice to this office, stating its position that the Plates should be classified in heading 70.06, HTSUS, which provides for “Glass of heading 70.03, 70.04, or 70.05, bent edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials,” or heading 702[0], HTSUS, which provides “Other articles of glass.”
ISSUE:
Whether the Hoya USA synthetic quartz glass plates coated with a thin layer of chrome metal are classified in heading 3701, HTSUS, as photographic plates and film in the flat, sensitized, unexposed, of any material other than paper, paperboard, or textiles; heading 7006, HTSUS, as glass of heading 70.03, 70.04, or 70.05, bent edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials; or heading 7020, HTSUS, as other articles of glass.
LAW AND ANALYSIS
Classification under the Harmonized Tariff Schedule of the United States is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of gods 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 requires, the remaining GRIs may then be applied.
The following HTSUS provisions will be referenced:
3701 Photographic plates and film in the flat, sensitized, unexposed, of any material other than paper, paperboard or textiles; instant print film in the flat, sensitized, unexposed, whether or not in packs
7006 Glass of heading 7003, 7004, or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials
7020 Other articles of glass
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Note 2 to Chapter 37, HTSUS, states, in pertinent part:
2. In this chapter the word “photographic” relates to the process by which visible images are formed, directly or indirectly, by the action of light or other forms of radiation on photosensitive surfaces.
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Note 2(c) to Chapter 70, HTSUS, states, in pertinent part:
2. For the purposes of headings 7003, 7004, and 7005:
…
(c) The expression “absorbent, reflecting or non-reflecting layer” means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infrared light; or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevent light from being reflected on the surface of the glass.
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Note 3 to Chapter 70, HTSUS, states, in pertinent part:
3. The products referred to in heading 7006 remain classified in that heading whether or not they have the character of articles.
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In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to Chapter 37, HS, provides, in pertinent part, the following:
GENERAL
The photographic plates, film, paper, paperboard and textiles of Chapter 37 are those with one or more layers of any emulsion sensitive to light or other forms of radiation having sufficient energy to cause the necessary reaction in photon (or photo) sensitive materials, i.e., radiation of wavelength no longer than approximately 1,300 nanometers in the electromagnetic spectrum (including gamma-rays, X-rays, ultra-violet and near-infrared radiation), as well as particle (or nuclear) radiation, whether for reproduction in monochrome or colour. Certain plates are, however, not coated with an emulsion but consist wholly or essentially of photosensitive plastics which may be affixed to a support.
The most common emulsions are based on silver halides (silver bromide, silver bromide-iodide, etc.) or on salts of other precious metals, but certain other materials may be used, e.g., potassium ferricyanide or other iron compounds for blue-prints, potassium or ammonium dichromate for photomechanical engraving, diazonium salts for diazo emulsions, etc.
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As an initial matter, this office finds that the Hoya USA Plates are prima facie not classifiable in heading 3701, HTSUS, because the Plates do not feature a layer of sensitized material. Heading 3701, HTSUS, provides, in pertinent part, for “Photographic plates and film in the flat, sensitized, unexposed, of any material other than paper, paperboard or textiles.” (Emphasis added). The term “sensitized,” as used in heading 3701, HTSUS, is not defined in the Nomenclature; however, the EN to Chapter 37, HS, describes photographic plates of Chapter 37, as those plates with “one or more layers of any emulsion sensitive to light or other forms of radiation having sufficient energy to cause the necessary reaction in photon (or photo) sensitive materials.” See EN Chapter 37, HS. The EN to Chapter 37, HS, further provides that examples of “emulsion[s] sensitive to light” include those base on silver halides (silver bromide, silver bromide-iodide, etc.) or on salts of other precious metals, but certain other materials may be used, e.g., potassium ferricyanide or other iron compounds for blue-prints, potassium or ammonium dichromate for photomechanical engraving, diazonium salts for diazo emulsions, etc. Consequently, it has been CBP’s prior practice to classify quartz glass substrates, coated with one or more layers of any emulsion sensitive to light or other forms of radiation, as articles of heading 3701, HTSUS. See Headquarters Ruling Letter (“HQ”) 962688, dated January 21, 2000 (classifying a multi-layer photomask blank consisting of a quartz glass substrate with chrome metal and photoresist coatings in heading 3701, HTSUS).
Here, however, unlike the photomask blank in HQ 962688 that was coated with a photoresist, the instant Hoya USA Plates consist only of a synthetic quartz substrate coated with a thin layer of chrome metal. The chrome metal coating is not sensitive to light, and Hoya USA expressly states that it applies a sensitized photoresist layer to the Plates only after the articles are imported into the United States. Consequently, because the Plates do not possess a sensitized layer or emulsion at the time they are entered for importation, the Plates do not meet the terms of heading 3701, HTSUS, and must be classified elsewhere in the Nomenclature.
Upon review of Hoya USA’s multiple submissions in support of its request for Internal Advice, this office notes that there is no dispute between the Port and Hoya USA as to whether the Plates may be properly classified in heading 7006, HTSUS, which provides for “Glass of heading 7003, 7004, or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials.” Heading 7005, HTSUS, provides, in pertinent part, for “Float glass and surface ground or polished glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer… [, but not otherwise worked].” Here, the synthetic quartz substrates are cut, ground, chamfered (edge bevel and corner), and polished to meet exact tolerances for width, length, thickness, and flatness, and each Plate next undergoes a sputtering process to apply a thin layer of light-absorbent, chrome metal to the substrate. As such, this office finds that the Plates are prima facie described by the terms of heading 7006, HTSUS, and are classifiable therein by application of GRI 1. Because the Plates are classified in heading 7006, HTSUS, they are not classifiable in heading 7020, HTSUS, which provides for “Other articles of glass.” See HQ 965548, dated August 7, 2002 (classifying glass substrates, cut to dimensional tolerances, in “ready to polish” or “ready to sputter” condition, in heading 7006, HTSUS).
HOLDING:
By application of GRI 1, Hoya USA’s synthetic quartz glass substrates coated with a thin layer of chrome metal are classified in heading 7006, HTSUS, Specifically, they are classifiable in subheading 7006.00.40, HTSUS, which provides for “Glass of heading 7003, 7004, or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials: Other: Other.” The column one, general rate of duty for subheading 7006.00.40, HTSUS, is 4.9% ad valorem.
You are to mail this decision to counsel for the internal advice requester no later than sixty days from the date of this decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public, on the CBP Home Page at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division