OT: RR: CTF: TCM: H264769 NCD
John M. Peterson
Neville Peterson LLP
One Exchange Plaza
55 Broadway, Suite 2602
New York, NY 10006
Re: Request for Reconsideration of NY N260676; Classification of photomask blanks
Dear Mr. Peterson:
This is in response to your letter, dated February 23, 2015, in which you request reconsideration of New York Ruling Letter (NY) N260676. NY N260676, issued to you February 6, 2015 by U.S. Customs and Border Protection (CBP), involves classification of photomask blanks under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N260676, determined that it is correct, and, for the reasons set forth below, are affirming that ruling.
NY N260676 provides the following description of the photomask blanks:
The photomask blanks consist of three layers, i.e., a substrate of high-purity quartz glass, a layer of metal and a top layer of photoresist. Subsequent to importation, the blanks will be subjected to a photolithographic process in the United States. You state that this process “creates lines corresponding to the specific circuit pathways that will appear in a semiconductor chip or IC”. The finished photomask will be used in a step-and-repeat machine of a kind used solely or principally for the manufacture of semiconductor wafers. In a step-and-repeat machine, a finished photomask is placed between a light source and a silicon wafer. Laser-generated light passes through the photomask in order to project the circuit pattern onto the photoresist-coated surface of a semiconductor wafer. The photomask blanks are available in a variety of sizes, the most common being 6” x 6” x ¼” deep.
CBP classified the photomask blanks in subheading 3701.99.60, 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 the packs: Other: Other: Other.” You assert in your February 23, 2015 letter that classification of the photomask blanks in subheading 3701.99.60, HTSUS, is incorrect. You assert that the photomask blanks are properly classified in subheading 8486.20.00, 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: Machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits.”
As you yourself state, the instant photomask blanks are prima facie classifiable in heading 3701, HTSUS. We have consistently held that photomask blanks are described by heading 3701 insofar as they are “photographic” for purposes of Note 2 to Chapter 37 and meet the court-endorsed description of “photographic plates” provided in EN 37.01. See Headquarters Ruling Letter (HQ) H264336, dated March 14, 2016 (citing AGFA Corp. v. United States, 491 F. Supp. 2d 1317 (Ct. Int’l Trade 2007), and QMS, Inc. v. United States, 19 C.I.T. 551 (1995)); and HQ 962688, dated January 21, 2000. This is because they consist of a substrate “plate” covered with photoresist, a “light sensitive material that, when exposed to light, reacts in a manner that results in the formation of images.” HQ H264336, supra. The instant photomask blanks, like those in our previous rulings, consist of a quartz substrate covered on one side by a layer of chrome and at top coating of photoresist. They are therefore photographic plates within the meaning of heading 3701, HTSUS.
You do not contest this, but instead contend that the photomask blanks are more specifically classified in heading 8486, HTSUS, as apparatus of a kind used solely or principally for the manufacture of semiconductor devices and electronic integrated circuits. Citing General Rule of Interpretation (GRI) 2(a) and EN(II) thereto, you assert that while the instant photomask blanks are incapable of this use at the time of entry, they have the “essential character” of finished photomasks that are so used, in that they have the shape and outline of the finished photomasks and can be used only for completion into finished photomasks. However, EN(II) to GRI 2(a) states that the provisions of GRI 2(a) “apply to blanks unless these are specified in a particular heading.” (emphasis added). The photomask blanks are specified in heading 3701, HTSUS, as discussed above. Moreover, photomask blanks lack the “essential character” of photomasks for purposes of GRI 2(a) because they require extensive post-entry processing, including exposure, development, etching, and resist removal, before they can be considered “commercially useful.” See HQ H264336, supra (citing FilmTec Corp. v. United States, 293 F. Supp. 2d 1364 (Ct. Int'l Trade 2003), and The Pomeroy Collection, Ltd. v. United States, 559 F. Supp. 2d 1374 (Ct. Intl. Trade 2008)).
Even assuming arguendo that the photomask blanks merit treatment as finished photomasks pursuant to GRI 2(a), they cannot be described as “apparatus” of heading 8486, HTSUS. You assert that photomasks satisfy dictionary and jurisprudential definitions of “apparatus” as “a set of materials.” However, there are myriad indications that, within the context of heading 8486, one of the defining features of an apparatus is its capacity to independently and actively perform particular functions. For example, various documents issued by the Harmonized System Committee (HSC) and Harmonized System Review Sub-Committee (RSC) in the course of the heading’s development list the specific articles to be covered by the heading, all of which are in and of themselves capable of projection, coating, cutting, etching, stripping, or related operations. See id. Many of these same articles appear in similar lists in EN 84.86 and Statistical Note 1 to Section XVI. Conspicuously left unlisted in the HSC and RSC documents, EN 84.86, and Statistical Note 1 alike are any articles that lack independent functionality and instead are simply manipulated or otherwise acted upon by other articles in the course of semiconductor production. See id. These include photomasks, which passively filter light projected by a step-and-repeat machine or similar projection equipment, but cannot do so in the absence of such equipment. Because photomasks lack the requisite independent functionality of apparatus of heading 8486, they cannot be classified as such.
You also assert that “Customs has issued rulings which implicitly acknowledge photomasks to be ‘apparatus’ of a kind covered by Heading 8486,” and specifically cite HQ H031396, dated January 5, 2010, and NY N121378, dated September 30, 2010. In these rulings, CBP classified photomask pellicles, which are thin films placed upon photomasks as protective covers, in heading 8486 as parts of machines and apparatus of a kind used solely or principally for the manufacture of semiconductor devices or electronic integrated circuits. Because the classification of photomask pellicles is not at issue in NY N260676, our determinations in HQ H031396 and NY N121378 are not binding for purposes of the instant decision letter. Nevertheless, we have determined that HQ H031396 and NY N121378 are incorrect and intend to revoke them under HQ file number H266971.
Lastly, regarding your reliance on NY N242843, dated July 5, 2013, NY N167595, dated June 22, 2011, NY N084635, dated December 11, 2009, and NY N084636, dated December 16, 2009, these cases are consistent with our position as set forth above. In NY N242843, for example, the products classified in heading 8486 were Custom Precision Positioning Stages, which independently position semiconductor wafers within electron beam microscopes. The molybdenum crucibles of NY N167595, CBP, which are inserted into and enable the use of sapphire growing furnaces, were classified as parts of machines or apparatus of heading 8486 rather than as machines or apparatus themselves. Similarly, the CMP pads at issue in NY N084635 and NY N084636 are affixed to chemical-mechanical planarization machines, and were accordingly classified as parts of heading 8486. In none of these cases did CBP classify articles incapable of independently and actively performing a particular function as machines or apparatus of heading 8486, HTSUS.
For all the aforementioned reasons, we hereby affirm NY N260676. Accordingly, the subject photomask blanks remain classified in heading 3701, HTSUS, specifically in subheading 3701.99.6060, HTSUSA (Annotated), as “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 the packs: Other: Other: Other.”
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division