CLA-2 OT:RR:CTF:TCM H154040DSR
Edward F. Juliano, Jr.
Attorney at Law
1050 Winter Street, Suite 1000
Waltham, MA 02451
RE: Ruling request concerning tariff classification of a line narrowing module.
Dear Mr. Juliano:
This is in response to your request on behalf of Cymer, Inc., dated August 9, 2010 (originally requested June 29, 2010), for a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a line narrowing module (“LNM”). We also note that you submitted additional substantial information regarding the product on March 2, 2011. We have examined the information submitted and our ruling follows.
FACTS:
The subject article is described as a “line narrowing module” (LNM) and is a subassembly consisting of optical prisms, a mirror and a grating, a stepper motor, piezoelectric devices and other electrical and mechanical components, all contained within a sealed metal housing.
After importation, the LNM is housed within an excimer laser. The excimer laser is contained within what is termed the excimer light source (ELS), along with other subassemblies such as a stabilization module, control module, solid state pulsed power module and fluorine traps. The LNM is being imported separately from those other articles. None of the assemblies are essential to the generation of laser light, but all are essential to the operation of the complete stepper/scanner for its intended purpose of exposing semiconductor wafers. The complete ELS is connected to a beam matching unit, which is then connected to the rest of a stepper/scanner. A stepper/scanner consists of modules which function together to perform semiconductor lithography.
Pulses of light are initially generated in the chamber of the ELS by the excimer laser. However, the pulses are not suitable for use in exposing semiconductor wafers until they have been narrowed to an extremely precise spectral wavelength, bandwidth and energy level, and also timed to impact the semiconductor wafers at the proper moments. The narrowing is accomplished by the ancillary subassemblies and the LNM. The LNM precisely isolates the wavelength and spectral bandwidth required and receives instructions from within the light source and stepper/scanner to “tune” the light. The tuned light eventually leaves the ELS and travels through a beam delivery unit to the stepper/scanner, where it is manipulated to expose the photoresist coating of semiconductor wafers.
The LNM is designed to be used exclusively with the excimer laser. The excimer laser (and the ELS as a whole) are designed and manufactured exclusively for incorporation into complete stepper/scanners and have no other applications. The stepper/scanner could not function as a semiconductor lithographer without the LNM and ELS.
ISSUE:
Whether the LNM is classified under heading 8486, HTSUS, as a part of 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; or under heading 9013, HTSUS, as a part of lasers?
LAW AND ANALYSIS:
The following HTSUS provisions are under consideration:
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 (C) to this chapter; parts
and accessories:
* * *
8486.90.00 Parts and accessories.
* * * *
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.
* * * *
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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 based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s 2 through 6 may then be applied in order. In addition, in interpreting 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).
Note 2 to Section XVI states the following, in pertinent part:
Subject to Note 1 to this Section … parts of machines … are to be classified according to the following rules:
(a) Parts, which are goods included in any of the headings of Chapter 84 or Chapter 85 … are in all cases to be classified in their respective headings.
(b) 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 …are to be classified with the machines of that kind …
…
Note 1(m) to Section XVI excludes articles of Chapter 90 from classification in Section XVI. Note 1(g) to Chapter 90 excludes articles of heading 8486 from Chapter 90.
Furthermore, EN 84.86(E) states the following:
Subject to the general provisions regarding the classification of parts (see 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 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.
Finally, General EN (II) to Section XVI states, in pertinent part:
In general, parts which are suitable for use solely or principally with particular machines or apparatus (including those of heading 84.79 or heading 85.43), or with a group of machines or apparatus falling in the same heading, are classified in the same heading as those machines or apparatus subject, of course, to the exclusions mentioned in Part (I) [to this EN] …
(Emphasis added). General EN (I)(A)(f) to Section XVI excludes articles of Section XVIII from classification in Section XVI.
* * *
You propose to classify the LNM in heading 8486, HTSUS, as a part of a machine and apparatus used in the manufacture of semiconductor devices or of electronic integrated circuits. In support of your position, you cite to CBP ruling NY N087022, dated January 6, 2010, in which CBP considered a subassembly of a step and repeat semiconductor-manufacturing machine. It consisted of a Beam Matching Unit ("BMU"), an excimer laser, and fluorine traps. The components of the subassembly were to be packed separately, but shipped together. All of the components were to be assembled together after importation and integrated into a complete semiconductor manufacturing machine. When completed, the step and repeat semiconductor manufacturing machine would function to create integrated circuits on silicon wafers. The excimer laser provided the light source and power for the semiconductor manufacturing machine. When fully assembled, the BMU would connect to the excimer laser and the illumination unit ("IU") of the step and repeat semiconductor manufacturing machine and deliver the beam from the excimer laser to the IU. The completed semiconductor manufacturing machine would not function without the BMU/laser subassembly.
The subject LNM is not akin to the good described in NY N087022. It is imported separately from the excimer laser and the stepper/scanner, and is not attached to, nor does it include, other components such as is the case with the assembly addressed in NY N0807022. In accordance with the general principle that merchandise is to be classified in its condition as imported, we will classify the LNM on the basis of its own specifications.
You also assert that this matter is controlled by Photonetics, Inc. v. United States, Slip Op. 09-117 (C.I.T. 2009). However, that court determined that the article at issue (a tunable laser) was prima facie classifiable under both headings 9013 and 9027, and those headings were not mutually exclusive. The court then determined that, by application of GRI 3(a), heading 9027 provided the most
specific description of the merchandise and was, thus, preferred. While the court’s analysis was correct, GRI 3(a) is inapplicable here, as 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, and General Note 1 to Section XVI specifically excludes articles of Chapter 90 from Section XVI.
* * *
Lasers and their parts are covered, eo nomine, in Section XVIII, heading 9013, HTSUS. There is no dispute that the LNM is a part of the excimer laser because it is designed to be used exclusively with the excimer laser and is not designed or sold to be used independently, and the excimer laser will not produce a laser beam that properly exposed the semiconductor wafers. “[A]n imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Bauerhin Technologies v. United States, 110 F.3d 774, 779 (citations omitted), (Fed. Cir. 1997).
If the excimer laser is a “laser” covered by heading 9013, HTSUS, then the LNM (as a part of the excimer laser) would be excluded from Section XVI and, accordingly, heading 8486, HTSUS. See Note 2(b) to Chapter 90 (“Other parts and accessories, if for use solely or principally with a particular kind of machine, instrument, apparatus … of the same heading (including a machine, instrument or apparatus of heading … 9013) are to be classified with the machines, instruments or apparatus of that kind.”); see also Note 1(m) to Section XVI, General EN (I)(A)(f) to Section XVI, supra.
EN 90.13 provides as follows:
… This heading includes:
…
(2) Lasers … intended to be incorporated in machines or appliances but also if they can be used independently …
However, the heading excludes lasers which have been adapted to perform quite specific functions by adding ancillary equipment consisting of special devices (e.g., work-tables, work-holders, means of feeding and positioning workpieces, means of observing and checking the progress of an operation, etc.) and which, therefore, are identifiable as working machines, medical apparatus, control apparatus, measuring apparatus, etc. Machines and appliances incorporating lasers are also excluded from the heading. Insofar as their classification is not specified in the Nomenclature, they should be classified with the machines or appliances having a similar function. Examples include:
(i) Machine-tools for working any materials by removal of material by laser (e.g., metal, glass, ceramics or plastics) (heading 84.56).
(ii) Laser soldering, brazing or welding machines and apparatus, whether or not capable of cutting (heading 85.15).
(iii) Instruments for leveling (aligning) pipes by means of a laser beam (heading 90.15).
(iv) Laser apparatus specially used for medical purposes (e.g., in ophthalmological operations) (heading 90.18).
Here, the excimer laser is not of the type of laser described by EN 90.13(2) and is not excluded from heading 9013, HTSUS. Although the excimer laser works to produce laser light that is eventually used by the stepper/scanner to produce highly sophisticated semiconductors, the excimer laser still merely acts as a producer of highly tuned and regulated laser light that is later manipulated by additional machinery to produce semiconductors. It has not been itself adapted to perform the types of procedures performed by the devices described by EN 90.13(2). See Photonetics, supra (tunable laser able to measure and check absorption of light by virtue of its optical coupler and specially designed external cavity found to be measuring apparatus described by EN 90.13). While the LNM acts to isolate the wavelength and spectral bandwidth required and receives instructions from within the light source and stepper/scanner to “tune” the light, the LNM is an optical component of the excimer laser and is not the type of ancillary equipment which would serve to exclude the excimer laser from heading 9013, HTSUS. Therefore, we find that the LNM is properly classified under heading 9013, HTSUS, specifically subheading 9013.90.90, HTSUS, as other parts and accessories of lasers. See Add’l. U.S. Rule of Interpretation 1(c) (a specific provision for a part prevails over a provision for parts of an article that covers products solely or principally used as a part of such article, unless special context or language otherwise requires).
HOLDING:
By application of GRI 1, the line narrowing module is classifiable under 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 column one, general rate of duty will be 4.5% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division