CLA-2 RR:CR:GC 962688 MGM
Port Director
U.S. Customs Service
555 Battery St.
San Francisco, CA 94111
Re: Protest 2908-98-100739; Photomask Blanks
Dear Port Director:
This is our decision regarding protest 2809-98-100739, concerning your classification of photomask blanks, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is a photomask blank. Photomasks are the templates for microchips found in computers and other electronic devices. Photomask blanks are etched and treated to become photomasks, which are then used in the manufacture of microchips. The photomask blanks consist of three layers: quartz glass, chrome and photoresist. In the 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 surface of the photomask in a desired pattern. Where the photomask is exposed the photoresist is affected, becoming either soluble in a developer solution (positive photoresist) or becoming insoluble in a developer solution (negative photoresist). Next the photomask is developed in an etching solution which dissolves and removes part of the photoresist, depending upon exposure to some form of radiation. The hardened photoresist is then removed leaving a template, or “blueprint,” consisting of quartz glass and chrome that will be used in defining one layer of microchip circuitry.
The photomask blanks come in several sizes usually ranging from 3 x 3 inch to 7 x 7 inch, however blanks up to 10 x 11 inches can be special ordered. See Protestant’s submission dated May 20, 1999.
ISSUE:
Does a photomask blank fall within the scope of the term “dry plate” as used in subheading 3701.99.30, HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff
classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. Further, only those subheadings at the same level of indentation are comparable. 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 HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
Heading 3701, HTSUS, reads as follows (ten-digit statistical suffixes omitted):
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:
3701.10.00 For X-ray
3701.20.00 Instant print film
3701.30.00 Other plates and film, with any side exceeding 255 mm
Other:
3701.91.00 For color photography (polychrome)
3701.99 Other:
3701.99.30 Dry plates
3701.99.60 Other.
The term “photographic plates” includes not only plates with layers of light-sensitive emulsions, but also plates with layers of photosensitive plastics affixed to a support. General EN, Chapter 37. Further, plates which are sensitive to particle radiation, rather than electromagnetic radiation, may be considered “photographic plates.” General EN, Chapter 37. Thus, photomask blanks with a photosensitive or electron-sensitive layer of photoresist containing polymers, as yet unexposed, fall within heading 3701, HTSUS. See also EN 84.42 (A) (regarding sensitized plates).
Within heading 3701, HTSUS, those photomask blanks which do not have any side exceeding 10 inches (254 mm) fall to the last residual, or “other,” provision because of their dimensions and because they are not used for X-rays and are not instant print film. (However, those photomask blanks which are 10 x 11 inches in size are classified in subheading 3701.30.00). Within this last residual provision are six-digit subheadings for plates used for color photography and those used for other than color photography. As a photomask is not used in color photography, the instant goods fall to be classified in subheading 3701.99.
Subheading 3701.99, is subdivided at the eight-digit level into two provisions, “dry plates” and “other.” A dry plate has long been considered a glass photographic plate with a sensitized coating of an emulsion of silver halide in gelatin. Webster’s Encyclopedic Unabridged Dictionary of the English Language 1966; McGraw-Hill Multimedia Encyclopedia of Science and Technology 1995. For example, The New Grolier Multimedia Encyclopedia (1994) states that “[t]he development of the gelatine dry plate in the 1870s began a revolution in camera design....”
“Tariff terms are to be construed in accordance with their common and commercial meanings, which are presumed to be the same. [citations omitted]. Congress is presumed to know the language of commerce, and to have framed tariff acts so as to classify commodities according to the general usage and denomination of the trade.” Sturm, Customs Law & Administration, 1995, § 52.6. Here, although photographic dry plates and photomask blanks depend upon similar physical principles, photomask blanks are not regarded as dry plates in commerce. Photomask blanks are made to more exacting standards than photographic dry plates. One could not simply substitute a photographic dry plate for a photomask blank in the manufacture of microchips.
HOLDING:
Photomask blanks, sensitized, unexposed, 255 x 255 mm or smaller in size are classified in subheading 3701.99.6060, HTSUS (Annotated). Photomask blanks, sensitized, unexposed, with any side greater in length than 255 mm are classified in subheading 3701.30.0000, HTSUS (Annotated). Since reclassification of the merchandise as indicated above will result in a lower rate of duty than claimed you should ALLOW the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division