CLA-2- OT:RR:CTF:TCM H052562 GC
U.S. Customs and Border Protection
Anchorage Service Port
605 West 4th Avenue, Suite 230 Anchorage, Alaska 99501
Attn: Karen Beaudin, Import Specialist
Re: Application for Further Review of Protest No. 3195-09-100019; Classification of a CMP pad conditioner
Dear Ms. Beaudin:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 3195-09-100019, filed on January 14, 2009, on behalf of VIAS International (protestant or Vias), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of an entry of a certain CMP pad conditioner.
FACTS:
Chemical-mechanical planarization (CMP) is one step in the process of manufacturing semiconductor chips in which the surface of a silicon wafer is polished or flattened through the use of a CMP tool. The CMP tool features a rotating platen covered with CMP pad. Abrasive slurry is poured onto the CMP pad while it is spinning, and the silicon wafer is pressed face-down onto the pad for polishing. Heat from this manufacturing step causes the slurry to form a hard glaze over the CMP pad, which retards the polishing process. The removal of this glaze, although not essential to the function of the CMP tool, ensures optimal performance with respect to polishing the silicon wafers.
The merchandise subject to the instant AFR is a CMP pad conditioner. It is designed to be placed on the arm or attachment of a CMP tool, and consists of a circular substrate of stainless steel that is covered on its face with synthetic diamonds. The diamond face is pushed onto a CMP pad while it is spinning, which breaks up and removes the glaze. The CMP pad conditioner never comes into contact with the silicon wafer.
The entries subject to this protest were entered between July 6, 2007 and July 24, 2008 under heading 6804, Harmonized Tariff Schedule of the United States (HTSUS), which provides for, “[m]illstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials”. The subject entries were liquidated between August 15, 2008 and September 26, 2008, under heading 8207, HTSUS, which provides for “[i]nterchangeable tools for handtools, whether or not poweroperated, or for machine-tools (for example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching, milling, turning or screwdriving), including dies for drawing or extruding metal, and rock drilling or earth boring tools; base metal parts thereof”.
ISSUE:
Whether the CMP pad conditioner is classified under heading 6804, 8207, or 8486, HTSUS?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on January 14, 2009, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further Review of Protest No. 3195-09-100019 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Namely, CBP has not addressed the question of whether merchandise like that subject to the instant AFR is classified under heading 8207, HTSUS, by operation of Note 1(e) to Chapter 68. We further note that, in the alternative, the protestant cited to Headquarters Ruling Letter (HQ) H055635, dated November 23, 2009, for the proposition that the subject merchandise is not covered by heading 8207, HTSUS, and instead should be classified under heading 8486, HTSUS, which provides for parts and accessories of machines and apparatus of a kind used solely or principally for the manufacture of semiconductor wafers.
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.
The HTSUS headings under consideration are the following:
6804 Millstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials:
* * *
8207 Interchangeable tools for hand tools, whether or not power-operated, or for machine-tools (for example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching, milling, turning or screw driving), including dies for drawing or extruding metal, and rock drilling or earth boring tools:
* * *
8486 Machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules or wafers, semiconductor devices, electronic integrated circuits of flat panel displays; machines and apparatus specified in Note 9(C) to this Chapter; parts and accessories:
Legal Note 1(e) to Chapter 68, HTSUS, states that Chapter 68 does not cover tools or parts of tools of Chapter 82, HTSUS. Accordingly, prior to considering heading 6804, HTSUS, it must be determined whether the instant merchandise is prima facie classifiable under heading 8207, HTSUS.
The construction and function of the instant CMP pad conditioner indicates that it is not itself a tool of heading 8207, HTSUS, but rather an accessory of the CMP tool to which it is attached. In this respect, the CMP pad conditioner differs from the high speed diamond cutter classified in HQ W968291, dated May 17, 2007. In that particular case, the diamond cutter was attached to a rotary power tool in order to enable the principle article to perform “fine detail work on materials such as wood, ceramic, jade, glass, and hardened steel….” By contrast, the CMP pad conditioner does not come into contact with the silicon wafer that the CMP tool polishes. Moreover, it is not essential for the CMP tool to perform its function. In light of the fact that the CMP pad conditioner merely enhances the function of the CMP tool, it constitutes an accessory to the CMP tool and is not itself a tool. Because heading 8207, HTSUS, does not provide for accessories for hand tools, we find that the instant CMP pad conditioner does not fall under its scope. Based on the foregoing, this office need not consider the applicability of Note 1 to Chapter 82, HTSUS.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. 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 (Aug. 23, 1989).
This office’s conclusion that heading 8207, HTSUS, does not provide for accessories for hand tools is supported by EN 82.07, HTSUS, which states, in pertinent part, the following:
Whereas (apart from a few exceptions such as machine saw blades) the preceding headings of this Chapter apply in the main to hand tools ready for use as they stand or after affixing handles, this heading covers an important group of tools which are unsuitable for use independently, but are designed to be fitted, as the case may be, into:
(A) hand tools, whether or not power operated (e.g., breast drills, braces and die stocks),
(B) machine tools, of headings 84.57 to 84.65, or of heading 84.79 by reason of Note 7 to Chapter 84,
(C) tools of heading 84.67,
for pressing, stamping, punching, tapping, threading, drilling, boring, reaming, broaching, milling, gear cutting, turning, cutting, morticing or drawing, etc., metals, metal carbides, wood, stone, ebonite, certain plastics or other materials, or for screwdriving…
The heading further includes tools with a base metal working part fitted or covered with abrasive materials, provided these tools have cutting teeth, flutes, grooves, etc., which retain their identity and function even after the application of the abrasive, i.e., tools which could be put to use even if the abrasive had not been applied; most abrasive tools are, however, excluded (see the Explanatory Note to heading 68.04).
(Emphasis in original)
We note that the CMP tool to which the instant merchandise is attached after importation is classified under heading 8486, HTSUS, which provides for machines and apparatus of a kind used solely or principally for the manufacture of semiconductor boules, wafers, and semiconductor devices. See, e.g., New York Ruling Letter (NY) N084635, dated December 11, 2009 and NY N084636, dated December 16, 2009. As stated in EN 82.07, supra., interchangeable tools of heading 8207, HTSUS, typically are used with tools of headings 8457, 8465, and 8479, HTSUS. Furthermore, the instant CMP pad conditioner cannot function without the application of the diamond abrasive. Accordingly, the instant CMP pad conditioner is not prima facie classifiable under heading 8207, HTSUS.
In light of the fact that the CMP tool is classifiable under heading 8486, HTSUS, the protestant has advanced the argument that the instant CMP pad conditioner is classifiable as an accessory under the same heading. However, we note that millstones, gindstones and other articles of Chapter 68, HTSUS, are excluded from classification under heading 8486, HTSUS, by application of Note 1(a) to Chapter 84, HTSUS. Accordingly, the instant CMP pad conditioner is not classified under heading 8486, HTSUS, if it is prima facie classifiable under heading 6804, HTSUS.
The instant CMP pad conditioner consists of a stainless steel plate to which synthetic diamonds have been added to allow it to break up and grind away the glaze created by the process of polishing silicone wafers. We find that this construction falls under the scope of heading 6804, HTSUS. See also NY A86107, dated September 25, 1996 (where a copper allow metal disc to which an abrasive coating of agglomerated diamond particles was added was classified under heading 6804, HTSUS). This finding is supported by EN 68.04, which states, in pertinent part, the following:
This heading covers, in particular:
* * *
(2) Grindstones for sharpening cutlery, tools, etc., and designed for mounting on hand, pedal or power operated machines.
The grindstones and millstones described… above are usually flat, cylindrical or in the shape of truncated cones.
It should, however, be noted that certain abrasive tools are excluded and fall in Chapter 82. The latter Chapter, however, covers only those tools with cutting teeth, flutes, grooves, etc., which retain their identity and function even after application of the abrasive material (i.e., tools which, unlike those of this heading, could be put to use even if the abrasive had not been applied). Saws with cutting teeth covered with abrasive therefore remain in heading 82.02. Similarly crown drills as used for cutting discs from sheets of glass, quartz, etc., are classified in this heading if the working edge is smooth apart from the abrasive coating, but in heading 82.07 if toothed (whether or not coated with abrasive)…
Because the instant CMP pad conditioners are prima facie classifiable under heading 6804, HTSUS, they are excluded from classification under heading 8486, HTSUS, by application of Note 1(a) to Chapter 84. Accordingly, they are classified under heading 6804, HTSUS.
HOLDING:
By application of GRI 1, the diamond dresser discs are classified in heading 6804, HTSUS, specifically under subheading 6804.21.00, HTSUS, which provides for “[m]illstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials: Other millstones, grindstones, grinding wheels and the like: Of agglomerated synthetic or natural diamond.” The column one, general rate of duty at the time of entry was free.
The protest should be approved. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, CBP will make the decision available to CBP personnel and to the public on the CBP website located at www.cbp.gov by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division