CLA–2 OT:RR:CTF:TCM H128136 AMM
Ms. Marian E. Ladner
Ladner & Associates PC
2000 Smith Street
Houston, TX 77002
RE: Modification of New York Ruling Letter N097693; classification of certain synthetic diamond products
Dear Ms. Ladner,
This letter is in response to your request, by letter dated August 30, 2010, to reconsider the classification, under the Harmonized Tariff Schedule of the United States (HTSUS) of five optical components in New York Ruling Letter (NY) N097693, issued to you by Customs and Border Protection (CBP) on April 13, 2010. We have reconsidered that ruling and found the classification of the Cryostat Window to be incorrect. Our analysis of the classification of four products at issue is set forth below.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY J80608 and NY M84902 was published on May 11, 2011, in Volume 45, Number 20, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
In NY N097693, CBP classified 5 synthetic diamond products: a CO2 Beam Splitter, classified under subheading 9002.90.95, HTSUS, which provides for: “Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; …: Other: Other: Other”, an IR Prism Accessory, classified under subheading 9001.90.50, HTSUS, which provides for: “…; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked: Other: Prisms”, a Cryostat Window, classified under subheading 7116.20.40, HTSUS, which provides for: “Articles of … precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Other: Of semiprecious stones (except rock crystal): Other”, a Laser Window, classified under subheading 9013.90.90, HTSUS, which provides for: “…; lasers, other than laser diodes; …; parts and accessories thereof: Parts and accessories: Other”, and a Laser Heat Sink Window, whose classification is not in dispute. All the products contain synthetic diamonds used in the electronic industry but are otherwise unrelated in their use.
The CO2 Beam Splitter, Part Number 155-104-0084, is made of E6’s Diafilm OP synthetic diamond. It is flat and oval shaped. According to the importer’s documents, it is used to split a laser beam in a laser spike anneal system, allowing the use of one lower power beam to perform the anneal function. A laser spike anneal system is used to reduce line width and structures on a computer chip in order to increase performance. The importer states that the CO2 beam splitter has an optical effect, in that it splits a beam of light. It is imported in a metal mounting which is composed of oxygen/halogen free copper and gold plating.
The IR Prism Accessory, Part Number 155-104-0569, is made of E6’s IIIa Optical synthetic diamond. It has a non-standard prism shape, in that the base of the prism is a circle with a diameter of 2.5mm, and it rises to a rectangular top measuring 2.5mm by 0.8mm. Its height is 1.1mm. It is used as part of an infared spectrometer, which uses the properties of infared light to identify materials. Specifically, the IR Prism Accessory is used as an attenuated total reflection crystal in the measurement of changes that occur in a total internal reflected beam when it comes in contact with a sample material. It is not mounted in any frame when it is imported.
The Cryostat Window, Part Number 155-104-0934, is made of E6’s Diafilm OP synthetic diamond. It is a disc with a diameter of 13mm. The surface has a 1% grade, making it nearly flat. It is used in a Cryostat, an instrument used to perform chemical and physical experiments at extremely low temperatures. The Cryostat Window acts as a shield between the inside and outside of the Cryostat. The Cryostat Window allows light to pass through it, but does not perform any optical or lensing effect.
The Laser Window, Part Number 155-104-0964, is made of E6’s Diafilm OP synthetic diamond. It is a nearly flat rectangular plate, measuring 29.44mm long by 12mm wide. It is used in a CO2 industrial laser, which is used to cut, weld, and surface treat a variety of materials. It is located in the laser cavity itself. The physical properties of the synthetic diamond prevent an effect known as “thermal lensing,” which deteriorates the quality of the laser beam. The Laser Window allows light to pass through it, but does not perform any optical or lensing effect.
ISSUES:
I. What is the proper classification for the CO2 Beam Splitter under the HTSUS?
II. What is the proper classification for the IR Prism Accessory under the HTSUS?
III. What is the proper classification for the Cryostat Window under the HTSUS?
IV. What is the proper classification for the Laser Window under the HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.
The 2011 HTSUS provisions under consideration are as follows:
7116 Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed):
Of precious or semiprecious stones (natural, synthetic or reconstructed):
Other:
Of semiprecious stones (except rock crystal):
7116.20.40 Other
7116.20.50 Other
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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
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9001 Optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; sheets and plates of polarizing material; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked:
9001.90 Other:
9001.90.50 Prisms
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9002 Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; parts and accessories thereof:
9002.90 Other:
Other:
9002.90.95 Other
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9013 Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof:
9013.90 Parts and accessories:
9013.90.90 Other
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9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof:
9027.90 Microtomes; parts and accessories:
Parts and accessories:
Other:
Of optical instruments and apparatus:
9027.90.64 Of instruments and apparatus of subheading 9027.20, 9027.30, 9027.50 or 9027.80
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Note 3(l) to Chapter 71, HTSUS, states, in pertinent part: “This chapter does not cover: … (l) Articles of chapter 90, 91 or 92 (scientific instruments, clocks and watches, musical instruments)”.
Note 1 to Section XVI, HTSUS (which covers both chapters 84 and 85), provides, in pertinent part:
This section does not cover:
* * *
(f) Precious or semiprecious stones (natural, synthetic or reconstructed) of headings 7102 to 7104, or articles wholly of such stones of heading 7116, except unmounted worked sapphires and diamonds for styli (heading 8522); …
* * *
(m) Articles of chapter 90; …
* * *
Note 2 to Chapter 90, HTSUS states, in pertinent part:
Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
* * *
(a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8487, 8548 or 9033) are in all cases to be classified in their respective headings;
(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind;
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 90.01(D) states:
Optical elements of any material other than glass, whether or not optically worked, not permanently mounted (e.g., elements of quartz (other than fused quartz), fluorspar, plastics or metal; optical elements in the form of cultured crystals of magnesium oxide or of the halides of the alkali or the alkaline earth metals). Optical elements are manufactured in such a way that they produce a required optical effect. An optical element does more than merely allow light (visible, ultraviolet or infrared) 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.
The EN to heading 90.02 provides, in pertinent part:
…this heading covers the articles referred to in Items (B), (C) and (D) of the Explanatory Note to heading 90.01 when in a permanent mounting (viz., fitted in a support or frame, etc.) suitable for fitting to an apparatus or instrument. The articles of the heading are mainly designed to be incorporated with other parts to form a specific instrument or part of an instrument …
If any of the products can be described by the terms of a heading in Chapter 90, they are excluded from classification in heading 8486, HTSUS, by virtue of Note 1(m) to Section XVI, HTSUS, and excluded from classification in Chapter 71, HTSUS, by virtue of Note 3(l) to Chapter 71, HTSUS. Furthermore, a product described by the terms of a heading in Chapter 90, HTSUS, cannot be classified as a part of another good in another heading, by virtue of Note 2(a) to Chapter 90, HTSUS. Therefore, consideration under Chapter 90, HTSUS, must be conducted first, where applicable.
I. CO2 Beam Splitter
There are three separate headings under which the CO2 Beam Splitter has been considered. In the Resubmission of Binding Ruling Request, dated December 17, 2009, the importer proposed classification under heading 8486, 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; …; parts and accessories”. In NY N097693, dated April 13, 2010, CBP classified the CO2 Beam Splitter under heading 9002, HTSUS, which provides for: “Lenses, prisms,
mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; …”. Finally, in the Request for Reconsideration of Binding Ruling for Classification – N097693, dated August 30, 2010, the importer argued for classification under heading 7116, HTSUS, which provides for: “Articles of … precious or semiprecious stones (natural, synthetic or reconstructed)”.
The CO2 Beam Splitter is a flat, oval shaped synthetic diamond, imported in a metal mounting composed of oxygen/halogen free copper and gold plating. It is used to split a laser beam in a laser spike anneal system, allowing the use of one lower power beam to perform the anneal function. Heading 9002, HTSUS, includes “other optical elements”. According to EN 90.01(D), “[a]n optical element does more than merely allow light (visible, ultraviolet or infrared) to pass through it, rather the passage of light must be altered in some way …”. The CO2 Beam Splitter alters the laser beam passing through it by splitting it into two different beams. Therefore, it meets the definition of “optical element” contained in EN 90.01(D). Furthermore, EN 90.02 states that the heading covers “the articles referred to in Items (B), (C) and (D) of the Explanatory Note to heading 90.01 when in a permanent mounting (viz., fitted in a support or frame, etc.) suitable for fitting to an apparatus or instrument.” The copper/gold mounting is permanently attached to the synthetic diamond, and is suitable to fit a laser spike anneal device. Therefore, the CO2 Beam Splitter is properly classified under heading 9002, HTSUS, specifically under subheading 9002.90.95, HTSUS, which provides for: “Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; parts and accessories thereof: Other: Other: Other”.
Because the CO2 Beam Splitter may be properly classified under heading 9002, HTSUS, is excluded from heading 8486, HTSUS, by Note 1(m) to Section XVI, HTSUS, and is excluded from heading 7116, HTSUS, by Note 3(l) to Chapter 71, HTSUS.
II. IR Prism Accessory
In NY N097693, CBP classified the IR Prism Accessory under heading 9001, HTSUS, which provides for “…; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked”. In the Request for Reconsideration of Binding Ruling for Classification – N097693, the importer argued for classification under heading 9027, HTSUS, which provides for “Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); …; parts and accessories thereof”.
The IR Prism Accessory is made entirely of synthetic diamond, imported in an unmounted state. It is used as an attenuated total reflection crystal in an infared spectrometer. When an infared beam is directed into it at a certain angle, the internal reflection creates an evanescent wave that extends beyond the IR Prism Accessory surface and into the sample of material to be identified. Because the instant merchandise alters a beam of light by converting the infared beam into an evanescent wave, it meets the definition of “optical element” contained in EN 90.01(D). Therefore, the IR Prism Accessory is properly classified under heading 9001, HTSUS, specifically under subheading 9001.90.50, HTSUS, which provides for: “…; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked: Other: Prisms”.
The importer argues that the IR Prism Accessory is a “part” of an infared spectrometer, and should therefore be classified under heading 9027, HTSUS, by virtue of Note 2(b) to Chapter 90, HTSUS. However, as discussed above, the IR Prism Accessory is a good included in a heading of Chapter 90, HTSUS, namely heading 9001, HTSUS. Therefore, Note 2(a) to Chapter 90, HTSUS, directs that the IR Prism Accessory should be classified under heading 9001, HTSUS, notwithstanding whether it is a “part” of an infared spectrometer.
III. Cryostat Window
In NY N097693, CBP classified the Cryostat Window under subheading 7116.20.40, HTSUS, which provides for: “Articles of … precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Other: Of semiprecious stones (except rock crystal): Other”. In the Request for Reconsideration of Binding Ruling for Classification – N097693, the importer argued that the Cryostat Window should be classified under subheading 7116.20.50, HTSUS, which provides for: “Articles of … precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Other: Other”.
CBP does not dispute that the Cryostat Windows are “Articles of … precious or semiprecious stones (natural, synthetic or reconstructed)” under heading 7116, HTSUS. Rather, the dispute is the proper 8-digit national tariff rate. As a result, GRI 6 applies.
GRI 6 states: For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The issue then becomes whether synthetic diamond is a semiprecious stone or a precious stone. CBP has consistently classified articles comprised solely of synthetic diamond under subheading 7116.20.50, HTSUS, as precious stones. See NY C83488, dated January 29, 1998; Headquarters Ruling Letter (HQ) 958293, dated April 23, 1996; NY 883022, dated February 26, 1993; and HQ 952587, date January 26, 1993. Therefore, the Cryostat Window should also be classified as a precious stone, rather than a semiprecious stone. The Cryostat Window is properly classified under subheading 7116.20.50, HTSUS, which provides for “Articles of … precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Other: Other.”
IV. Laser Window
In NY N097693, CBP classified the Laser Window under heading 9013, HTSUS, which provides for: “…; lasers, other than laser diodes; …; parts and accessories thereof”. In the Request for Reconsideration of Binding Ruling for Classification – N097693, the importer argued that the Laser Window should be classified under heading 7116, HTSUS, which provides for “Articles of … precious or semiprecious stones (natural, synthetic or reconstructed)”.
In Bauerhin Techs. Ltd. P’ship. v. United States, 110 F. 3d 774 (Fed. Cir. 1997), the court identified two distinct lines of cases defining the word “part.” Consistent with United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324 (1933), one line of cases holds that a part of an article is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” The other line of cases evolved from United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), which held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed, the article will not operate without it. Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” ABB, Inc. v. United States, 28 Ct. Int’l Trade 1444, 1452-53 (2004); Bauerhin, 100 F. 3d at 1452-32.
The Laser Window is used in a Trumpf CO2 industrial laser, which is used to cut, weld, and surface treat a variety of materials. It is located in the laser cavity itself. These lasers generate a large amount of heat. Materials traditionally used for laser windows are not capable of handling this heat, as they are vulnerable to an effect known as “thermal lensing”, which deteriorates the quality of the beam. The physical properties of the synthetic diamond prevent “thermal lensing”. The Laser Window allows light to pass through it, but does not perform any optical or lensing effect. The Laser Window meets the Willoughby definition of a “part”, in that it is a component part without which the CO2 industrial laser could not function. If the Laser Window was not in place, the gas inside would escape, rendering the laser inoperable. Therefore, the Laser Window is properly classified as a “part” of a laser under heading 9013, HTSUS, specifically under subheading 9013.90.90, which provides for: “…; lasers, other than laser diodes; …; parts and accessories thereof: Parts and accessories: Other”.
Because the Laser Window may be properly classified under heading 9013, HTSUS, in accordance with Note 2(b) to Chapter 90, HTSUS, it is excluded from heading 7116, HTSUS, by Note 3(l) to Chapter 71, HTSUS.
HOLDING:
By application of GRI 1, the CO2 Beam Splitter, Part Number 155-104-0084, is classified in heading 9002, HTSUS, specifically under subheading 9002.90.95, which provides for “Lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus, other than such elements of glass not optically worked; parts and accessories thereof: Other: Other: Other”. The general, column one rate of duty is 3% ad valorem.
By application of GRI 1, the IR Prism Accessory, Part Number 155-104-0560, is classified in heading 9001, HTSUS, specifically under subheading 9001.90.50, which provides for “Optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; sheets and plates of polarizing material; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked: Other: Prisms”. The general, column one rate of duty is 2.8% ad valorem.
By application of GRI 6, the Cryostat Window, Part Number 155-104-0934, is classified in heading 7116, HTSUS, specifically under subheading 7116.20.50, which provides for “Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Other: Other”. The general, column one rate of duty is free.
By application of GRI 1, the Laser Window, Part Number 155-104-0964, is classified in heading 9013, HTSUS, specifically under subheading 9013.90.90, which provides for “Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof: Parts and accessories: Other”. The general, column one rate of duty is 4.5% ad valorem.
Duty rates are provided for your convenience and are subject to change.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N097693, dated April 13, 2010, which classified the Cryostat Window under subheading 7116.20.40, HTSUS, is hereby MODIFIED in accordance with the above holding.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division