CLA-2 OT:RR:CTF:TCM H031396 RM
Port Director
Port of Anchorage
U.S. Customs and Border Protection
605 W. Fourth Avenue, Room 203
Anchorage, AK 99501
Attn: Ms. Caroline Takaki
RE: Tariff Classification of Photolithography Pellicles; Internal Advice 08/010
Dear Port Director:
This is in response to the memorandum from your office, dated June 2, 2008, forwarding with comments the Request for Internal Advice initiated by Shin-Etsu Microsi, Inc., dated January 31, 2008, regarding the tariff classification of certain photolithography pellicles under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
At issue are various models of photolithography pellicles imported by Shin-Etsu Microsi, specifically: PL6A2HF-AXN-6, PL6HF-AXN-6, PL6A2HF-A2N-6, PL6N2HF-A2G, and PL6A2HF-EXN. Requester indicated that all models are “soft pellicles,” i.e., thin, optically transparent covers made of fluorocarbon-based polymers (e.g., nitrocellulose) that are placed over a photomask during the photolithography process to shield it from dust and other contaminants. They do not alter or in any way affect the light that flows through them.
The Port of Anchorage believes that the merchandise is classified under heading 9002, HTSUS, as “Other optical elements, of any material, mounted, being parts of … instruments or apparatus ….” The importer submits that it is classified under heading 8486, HTSUS, as “Machines and apparatus of a kind used solely or principally for the manufacture of … semiconductor devices …; parts and accessories.”
ISSUE:
What is the correct tariff classification of the subject pellicles under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods 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 require, the remaining GRIs 2 through 6 may then be applied in order.
CBP recently changed its position with regard to the classification of soft pellicles. See “Revocation of Two Ruling Letters and Revocation of Treatment Relating to the Tariff Classification of Pellicles” Customs Bulletin, Volume 43, No. 50, dated December 10, 2009. In Headquarters Ruling Letter (“HQ”) H055635 and in HQ H055636, both dated November 23, 2009, we found that soft pellicles are not classified under heading 9002, HTSUS, as “Optical elements, mounted, being parts … for instruments or apparatus …” because they do not alter the light that passes through them. See EN 90.02 (incorporating by reference EN 90.01, which explains that an optical element “does more than merely allow light … to pass through it, rather, the passage of light must be altered in some way, for example, by being reflected, attenuated, filtered, diffracted, collimated, etc.”). Unlike the products described in EN 90.02, soft pellicles are intentionally designed to reduce their reflectivity and to optimize light transmission.
The 2010 HTSUS provision under consideration is the following:
8486 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:
8486.90.00 Parts and accessories …
* * *
Legal Note 2 to Section XVI, HTSUS, provides, in relevant part:
Subject to note 1 to this section, note 1 to chapter 84 and note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
Parts which are goods included in any of the heading of Chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 are to be classified in heading 8517.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 8486, HTSUS, provide, in part:
This heading covers 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 …
(B) MACHINES AND APPARATUS FOR THE MANUFACTURE OF SEMICONDUCTOR DEVICES OR OF ELECTRONIC INTEGRATED CIRCUITS
This heading covers machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits such as:
…
Lithography equipment, which transfer the circuit designs to the photoresist-coated surface of the semiconductor wafer such as:
Equipment for exposing the photoresist coated wafer with the circuit design (or a part thereof):
(i) Using a mask or reticle and exposing the photoresist to light (generally ultraviolet) or, in some instances, X-rays:
Contact printers …
Proximity aligners …
Scanning aligners …
Step and repeat aligners, which use projection techniques to expose the wafer a portion at a time. Exposure can be by reduction from the mask to the wafer or 1:1. Enhancements include the use of an excimer laser.
(E) PARTS AND ACCESSORIES
Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading includes parts and accessories for the machines and apparatus of this heading. Parts and accessories falling in this heading thus include, inter alia, work or tool holders and other special attachments which are solely or principally used for the machines and apparatus of this heading.
Heading 8486, HTSUS, provides, in relevant part, 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; … parts and accessories.” The subject pellicles are “parts” of a kind used solely with lithography equipment, which transfers integrated circuit designs to the photoresist-coated surface of a semiconductor wafer. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774, 777 (Fed. Cir. 1997) (“[A]n imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.”). Specifically, they are parts of step-and-repeat aligners. See EN 84.86 (B)(4)(b)(i)(d).
Note 2(b) to Section XVI, HTSUS, provides that parts which are not included in any of the headings of Chapters 84 or 85 (except for some headings not relevant here), and that are suitable for use solely or principally with a particular kind of machine, are to be classified with that machine. The pellicles at issue are not specifically described in either Chapter. As such, we find that they are classified under heading 8486, in subheading 8486.90, HTSUS, as parts of machines and apparatus of a kind used solely for the manufacture of integrated circuits.
HOLDING:
By application of GRI 1 and Note 2(b) to Section XVI, HTSUS, the subject pellicles are classified in heading 8486, HTSUS, specifically in subheading 8486.90.00, 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; … parts and accessories: Parts and accessories.” The 2010 column one, general rate of duty is Free.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division