CLA-2 OT:RR:CTF:TCM H264336 NCD
TARRIF NO.: 3701.99.6060; 7006.00.4010
Daniel Cannistra
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington DC 20008
RE: Request for classification of coated glass substrates
Dear Mr. Cannistra:
This is in response to your March 13, 2015 letter, on behalf of Photronics Inc. (“Photronics”), in which you request a binding ruling as to the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of coated glass substrates. Our decision as to the proper classification of the subject products under the HTSUS is set forth below. In arriving at this decision, we have taken into consideration your March 13, 2015 letter, information provided to us at a July 20, 2015 meeting between members of our office and representatives of Photronics, your supplementary submission of September 14, 2015, and your further communications with this office.
FACTS:
The instant ruling request applies to two different products, each of which consists of a polished, round-edged quartz substrate base covered with a thin, light-absorbent chromium coating. One of the products at issue consists solely of the quartz substrate and chrome coating. The other, a finished “photomask blank,” contains a layer of photoresist (“resist”), which is a light-sensitive material, spun-coated and baked onto the intermediate chrome layer. Following importation, the former will be coated with photoresist to form a photomask blank, and both products will eventually be converted to photomasks that can be used with lithography machines to produce integrated circuits (ICs).
As you assert, a photomask blank is converted to a photomask through a multi-stage process. Initially the photomask blank is exposed to a carefully-controlled beam of light, projected by a laser mask writer or other mask-producing device which “marks” the top photoresist layer in a pattern corresponding to the unique circuit pathways of a particular layer of an IC. This directed exposure causes a chemical reaction that alters the solubility of the targeted portions of the resist, in effect enabling removal of more soluble portions with a developer. In the development process, removal of the more soluble resist portions reveals the underlying, unwanted portions of chrome, which are then stripped from the substrate through exposure to a chemical agent in a process known as etching. Left on the surface of the substrate following the exposure, development, and etching steps is a series of transparencies that allow passage of light in the pattern marked in the initial step. Finally, the substrates are stripped of the remaining, undissolved photoresist to reveal the underlying portions of chrome that, due to their capacity to absorb light, effectively provide the contours of the intended IC pattern.
Once finished, the photomask is used in conjunction with a stepper, aligner, or other photolithography device to project the pattern etched on the photomask onto a wafer, which is a thin slice of semiconductor material used in the fabrication of integrated circuits. Specifically, light projected onto the wafer by the device is filtered through the photomask to replicate the photomask’s pattern on the resist-covered surface of the wafer. This pattern is subsequently etched onto the wafer in a series of steps similar to those involved in the creation of the corresponding photomask. In the production of complex integrated circuits, a wafer will be subjected to the above-described process numerous times so as to embed several layers of semiconductor material. You state on page 2 of your March 13, 2015 ruling request that “[a]n integrated circuit is, therefore, a three-dimensional structure made of a stack of geometric layers of semiconductor materials.”
At the July 20, 2015 meeting, we inquired as to the production process for the subject substrates. It was stated in response that they are drawn from pure quartz, i.e., silicon dioxide, and have been edged-worked and polished prior to annealing. It was stated that this process imparts the substrate with unique properties and renders it suitable for use in high-precision semiconductor production. On page 2 of your September 14, 2015 submission, you expound upon these descriptions as follows:
The vast majority of photomasks are manufactured on a photomask blank substrate made of fused quartz (a term often used interchangeably with fused silica although each may have a different manufacturing process and starting material) herein referred to simply as quartz. Most photomask substrates use a raw quartz starting material which gives photomask blanks their unique optical properties needed for use in integrated circuit manufacturing. These specialized properties include high transmission of ultraviolet light, consistency of optical polarization transmission, thermal stability, and high melting temperature. The method of manufacture is vapor phase axial deposition. The starting material is drawn through a hot furnace in an axial direction resulting in the deposition of the melt on a rotating seed crystal has been adopted [sic] for the manufacture of these critical photomask blank substrates. Due to the optical requirements of quartz photomask blanks, the starting material is typically raw quartz crystal as opposed to quartz sand or silicon composite materials although variations on the initial manufacturing processes are known to exist. One [sic] the grown and drawn quartz ingot is produced in the hot axial deposition it is further processed to form the square photomask blank by grinding, slicing, polishing and finally annealing for purpose of removing residual stress in the fabricated substrate induced by the various processing steps…Once the photomask blank is complete and checked, various films and/or coatings may be applied to the substrate depending on the specifications of the photomask blank as used in the customized integrated circuit manufacturing process…
We submitted the provided samples to a U.S. Customs and Border Protection (CBP) laboratory for further analysis. The laboratory reported that each substrate measures 152 mm x 152 mm x 6.3 mm and is made of amorphous, rather than crystalline, quartz of 99.9 percent pure silica. The laboratory also reported that if the substrate did in fact undergo high temperature annealing, it was unlikely to have done so following cutting, edge-working, and polishing. The laboratory confirmed that one of the coated substrate types contains a layer of pure chromium, at least 50 nanometers (nm) thick, that is passivated by a transparent, chrome-oxy-nitride film that is approximately 40 nm thick. The laboratory further reported the other type of substrate contains both this chrome layer and a top layer of photoresist that is approximately 375 nm thick.
ISSUE:
Whether the subject merchandise is properly classified in heading 3701, HTSUS, as sensitized, unexposed photographic plates, in heading 7006, HTSUS, as worked float glass, or in heading 8486, HTSUS, as parts of machines used solely or principally for the manufacture of semiconductor wafers.
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 (AUSRIs). The GRIs and the AUSRIs are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
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 GRIs may then be applied. GRI 2(a) provides that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the “essential character” of the complete or finished article.
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. 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).
The 2016 HTSUS provisions under consideration are as follows:
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 the packs:
3701.99 Other:
3701.99.60 Other
7004 Drawn glass and blown glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer, but not otherwise worked:
7004.20 Glass, colored throughout the mass (body tinted), opacified, flashed or having an absorbent, reflecting or non-reflecting layer:
7004.20.10 Having an absorbent, reflecting or non-reflecting layer
7006 Glass of heading 7003, 7004, or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials:
Other:
7006.00.40 Other
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:
8486.20.00 Machines and apparatus for the manufacture of semiconductor devices or of electronic integrated circuits
8486.40.00 Machines and apparatus specified in note 9 (C) to this chapter
8486.90.00 Parts and accessories
Heading 3701, HTSUS, describes, inter alia, sensitized photographic plates. Note 2 to Chapter 37 states as follows:
In this Chapter the word “photographic” relates to the process by which visible images are formed, directly or indirectly, by the action of light or other forms of radiation on photosensitive surfaces.
The EN to Chapter 37, HTSUS, states, in pertinent part, as follows:
The photographic plates, film, paper, paperboard and textiles of Chapter 37 are those with one or more layers of any emulsion sensitive to light or other forms of radiation having sufficient energy to cause the necessary reaction in photon (or photo) sensitive materials…
Such plates and film in the flat (i.e., not in rolls), including film put up in disc form, are unexposed and are generally coated with a sensitizing photographic emulsion…
These goods are put to many uses such as:
Photomechanical process plates of the type used for photoengraving, photolithography, etc.
EN 37.01 states, and the courts have confirmed, that heading 3701 applies to plates coated with light-sensitive material that are used for photolithographic purposes. See AGFA Corp. v. United States, 491 F. Supp. 2d 1317, 1319, 1322-26 (Ct. Int'l Trade 2007), aff’d 520 F.3d 1326 (Fed. Cir. 2008) (referencing EN 37.01 in determining that plates were properly classified in heading 3701 where they were covered with photosensitive emulsion and used for photolithography); see also QMS, Inc. v. United States, 19 C.I.T. 551, 562 (1995) (“This Court finds the term ‘photographic’ to be sufficiently broad so as to indicate a legislative intent to include within the tariff provisions of Chapter 37 more processes than what may be considered conventional photography or photography as that term may be commonly understood.”). Consistent with this, CBP has previously classified “sensitized” plates, including photoresist-covered substrates, in heading 3701, HTSUS. See Headquarters Ruling Letter (HQ) 962688, dated January 21, 2000; HQ 967087, dated May 25, 2004; and New York Ruling Letter (NY) N260676, dated February 6, 2015.
Of the two types of substrates at issue, one contains a top layer of photoresist. As discussed above, photoresist is a light-sensitive material that, when exposed to light, reacts in a manner that results in the formation of images on the semiconductor wafer. Accordingly, the photoresist-covered substrates, as plates coated with “sensitizing” material that are used for photolithography, are classifiable in heading 3701, HTSUS. However, because the chrome layer does not react to light, the substrates covered only with this layer are not described as “photographic.” They are, in effect, excluded from heading 3701, HTSUS.
You assert that CBP’s position with regard to classification of sensitized substrates is incorrect because the images formed on the semiconductor wafers through the use of photoresist are microscopic. You state that because the circuitry patterns are too small to be seen with the naked eye, they are consequently not “visible.” First, in our July, 2015 meeting, you brought samples of exposed photomasks that contain visible geometric images. While you explained that these were not circuitry patterns, they were, in fact, images perceptible to the naked eye. Moreover, there is no indication in heading 3701, its pertinent section or chapter notes, or the relevant ENs that images created through use of the photosensitive emulsion must be visible to the naked eye. In contrast, chapter notes governing other headings explicitly state that products are only classifiable in those headings where they “can be seen with the naked eye” or are “visible to the naked eye.” See Chapter 59, Note 2(a)(5), HTSUS; Chapter 64, Note 3(a), HTSUS; and Chapter 56, Notes 3(b)-4, HTSUS (addressing certain products that can or cannot “be seen with the naked eye”); Richard v. United States, 677 F.3d 1141, 1147 n.11 (Fed. Cir. 2012) (“When Congress includes a specific term in one section of a statute but omits it in another section of the same Act, it should not be implied where it is excluded.”). You also contend that the term “image” is limited to two-dimensional pictures and that, in effect, the three-dimensional images ultimately created with use of the substrates cannot be considered photographic for purposes of Note 2. Again, this restrictive interpretation of “image” is not supported by the Nomenclature, relevant ENs, or applicable jurisprudence. Furthermore, the circuitry pattern created on each resist-coated substrate through the photolithographic process is in fact a two-dimensional image. While the finished ICs may ultimately incorporate three-dimensional structures, the classification of those articles is not at issue here. Therefore, the photoresist-coated substrates are “photographic” within the meaning of Note 2 to Chapter 37.
We next consider heading 7004, HTSUS, which provides, inter alia, for drawn glass that is covered with an absorbent, reflecting layer but is not otherwise worked, and heading 7006, HTSUS, which provides, inter alia, for drawn glass that has been bent, edge-worked, engraved, drilled, enameled, or otherwise worked. Note 5 to Chapter 70 states, with respect to “glass” for tariff classification purposes: “Throughout the tariff schedule, the expression ‘glass’ includes fused quartz and other fused silica.” Additional U.S. Note 1 to Chapter 70 further restricts the scope of the term as follows: “For the purposes of this chapter, the term ‘fused quartz or other fused silica’ means glass containing more than 95 percent silica by weight.”
With specific regard to products of heading 7004, Note 2 to Chapter 70 provides:
For the purposes of headings 7003, 7004, and 7005:
Glass is not regarded as “worked” by reason of any process it has undergone before annealing;
Cutting to shape does not affect the classification of glass in sheets;
The expression “absorbent, reflecting or non-reflecting layer” means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infra-red light or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass.
Additionally, the EN to heading 7004 states, in pertinent part, as follows:
This heading is restricted to drawn glass and blown glass which must be unworked and in sheets (whether or not cut to shape)…
The heading excludes drawn glass and blown glass which have been surface ground, polished or otherwise worked (see the Explanatory Notes to headings 70.05, 70.06, 70.09, etc.).
In turn, the EN to heading 7006 provides, in relevant part, as follows:
This heading covers glass of the types referred to in headings 70.03 to 70.05 which has been subjected to one or more of the processes mentioned below…
This heading includes…
Glass with worked edges (ground, polished, rounded, notched, chamfered, bevelled, profiled, etc.), thus acquiring the character of articles such as slabs for table-tops, for balances or other weighing machinery, for observation slits and the like, for signs of various kinds, fingerplates, glasses for photograph frames, etc., window panes, glass fronts for furniture, etc…
Glass which has been surface worked after manufacture, for example, glass subjected to obscuring processes (sand-blasted glass, or glass rendered dull by treatment with emery or acid); frosted glass; glass engraved or etched by any process; enamelled glass (i.e., glass decorated with enamel or vitrifiable colours); glass bearing designs, decorations, various motifs, etc., produced by any process (hand painting, printing, window transparencies, etc.) and all other glass decorated in any other way, except glass hand painted so as to constitute a painting of heading 97.01…
Photographic glass plates (sensitized, exposed or developed) fall in Chapter 37…
Read together, the foregoing chapter notes and ENs instruct that drawn glass, including fused quartz of over 95 percent silica, is classifiable in heading 7004 where it is edge-worked, polished, or otherwise worked prior to annealing, but is instead classifiable in heading 7006 where it undergoes these processes subsequent to annealing. See HQ H192355, dated August 5, 2013 (distinguishing between pre-annealing working and post-annealing working for classification purposes). Glass of either heading may be coated with an “absorbent, reflecting or non-reflecting layer,” which denotes a “microscopically thin coating of metal or of a chemical compound.” See HQ H237648, dated February 19, 2015 (classifying quartz substrates with a light-absorbent chromium coating in heading 7006). However, the application of any other material is not permitted within the scope of either heading. See EN 70.06 (instructing that sensitized glass plates remain classified in headings of Chapter 37).
Here, both products at issue contain polished quartz substrates with rounded edges that, according to your supplemental submission, are created through a drawing process known as vapor axial disposition. The aforementioned CBP laboratory report states that the substrates are made of amorphous, rather than crystalline, quartz with silica purity of 99.9 percent. They are therefore described as “glass” for tariff classification purposes. However, contrary to your description of the substrate production process, the CBP laboratory report further states that both types of substrates are unlikely to have undergone annealing following their cutting, edge-working, and polishing. This statement is consistent with numerous patents pertaining to quartz substrates for use as photomasks, according to which annealing is conducted prior to final cutting, grinding, chamfering, and/or polishing in a standard substrate production cycle. See, e.g., U.S. Patent No. 6,413,682 (issued July 2, 2002) (“It is generally practiced to effect annealing treatment on a synthetic quartz glass block…The annealing treatment is followed by slicing, chamfering, and polishing, thereby producing a synthetic quartz glass substrate.”); U.S. Patent No. 7,954,340 (issued June 7, 2011) (“The synthetic quartz block as annealed is ground on every surface by a surface grinding machine and finished such that opposed surfaces of each pair are parallel. The block is then sliced into a substrate and chamfered along each side.”); and U.S. Patent No. 7,491,475 (issued Feb. 17, 2009) (“After completion of the molding, the block is annealed to carry out annealing…A plate of 153 mm square x 6.4 mm in thickness is cut our from the obtained block…Then, the hydrogen plate is polished to prepare a photomask substrate.”). Since, by all indications, the instant substrates underwent these steps subsequent to annealing, they are both excluded from heading 7004. Moreover, while the chrome-coated substrates are covered with an absorbent metal, the sensitized substrates have a top coating of photoresist, which, according to our research, is a non-metallic emulsion rather than a metal or singular chemical compound within the meaning of Note 2(c) to Chapter 70. See, e.g., McGraw-Hill Concise Encyclopedia of Science & Technology 1665 (6th ed. 2009) (describing photographic materials). The resist-coated substrates are consequently excluded from both heading 7004 and heading 7006, whereas the chrome-coated substrates are classifiable in heading 7006 only. See HQ H237648 (distinguishing between resist-coated substrates and substrates coated only in chrome for classification purposes). We note that this result is consistent with the EN to heading 7006, which instructs that sensitized glass plates such as the resist-covered substrates are to be classified in a heading of Chapter 37.
Your primary contention, as conveyed in your submissions and our various communications, is that the subject substrates are actually classified in heading 8486 rather than in heading 3701, heading 7006, or anywhere else in the HTSUS. You specifically assert that the substrates are described as apparatus of a kind used solely or principally for the manufacture of electronic integrated circuits, as parts of machines of a kind used solely or principally for the manufacture of electronic integrated circuits, or as parts of machines specified in Note 9(C) to Chapter 84. Chapter 84, Note 9(C), HTSUS, states, in pertinent part: “Heading 8486 also includes machines and apparatus solely or principally of a kind used for…the manufacture or repair of masks and reticles.” The EN to heading 8486 provides, in relevant part, as follows:
(B) MACHINES AND APPARATUS FOR THE MANUFACTURE OF SEMICONDUCTOR DEVICES OR OF ELECTRONIC INTEGRATED CIRCUITS
This group 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 coating wafers with photoresist. These include the photoresist spinners which apply liquid photoresist evenly over the surface of the wafer.
Equipment for exposing the photoresist coated wafer with circuit design (or a part thereof):
Using a mask or reticle and exposing the photoresist to light (generally ultraviolet) or, in some instances, X-rays:
Contact printers, where the mask or reticle is in contact with the wafer during exposure.
Proximity aligners, which are similar to contact aligners except actual contact does not take place between the mask or reticle and the wafer.
Scanning aligners, which use projection techniques to expose a continuously moving slit across the mask and wafer.
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.
Direct write on wafer equipment. These apparatus operate with no mask or reticle. They use an automatic data processing machine-controlled “writing beam” (such as an electron beam (E-beam), ion beam or laser) to “draw” the circuit design directly on the photoresist coated wafer…
(D) MACHINES AND APPARATUS SPECIFIED IN NOTE 9(C) TO THIS CHAPTER
This groups covers machines and apparatus solely or principally of a kind used for:
The manufacture or repair of masks and reticles (e.g., appliances (photoplotters) for the photographic production of photomasks and ion milling machines for the repair of masks and reticles)…
Additionally, Section XVII, Statistical Note 1, states, in pertinent part: “Provisions for semiconductor manufacturing and testing machines and apparatus cover products for…the processing of such materials into semiconductor devices…” It lists as examples of “Lithography equipment” the exact articles and descriptions of such set forth in EN 84.86.
Initially, we note that neither type of substrate, in its condition as imported, is fit for immediate use in the production of ICs. Pursuant to GRI 2(a), an unfinished article may be classified in a heading describing the finished article so long as it has the “essential character” of the finished article. According to CBP precedent and jurisprudence imparted by the Court of International Trade (C.I.T.), “essential character” within the meaning of GRI 2(a) denotes the capacity, with minor post-entry processing, to ultimately perform the functions rendering the article “commercially useful.” See, e.g., The Pomeroy Collection, Ltd. v. United States, 559 F. Supp. 2d 1374, 1387 n.14 (Ct. Intl. Trade 2008) (“Even the incomplete candle lamps, as imported, were capable of providing illumination by candle light, and thus had the ‘essential character’ of complete candle lamps.”). In the particularly germane FilmTec Corp. v. United States, for example, the C.I.T. held that a textile fabric could not be classified as a “finished straining cloth” because, at the time of importation, “the subject merchandise lacks the commercially useful application of the final RO Membrane, namely, the ability to filter salt from seawater.” 293 F. Supp. 2d 1364, 1365-67, 1369 (Ct. Int'l Trade 2003). In so holding, the Court noted that “it remains that whatever straining ability inheres in RO Membrane is not imparted by the AWA No. 10 support web, but by the chemical layers which FilmTec casts onto the support web after its importation.” Id. at 1369.
Here, the commercial utility of the finished photomasks is in their capacity to define the circuitry patterns in the underlying silicon wafers by filtering the light projected by the aligner. The instant substrates, like the textile fabric in FilmTec, require numerous additional processing steps following importation to reach the stage at which they provide this filtering capacity. Specifically, the chrome-coated substrates must first be coated with the photoresist layer and both products must be subjected to the marking, development, etching, and resist removal processes. Without the imprinted circuitry patterns created through these steps, the substrates are nothing more than coated glass plates, as they cannot filter light onto the silicon wafer in any kind of useful way. Consequently, the instant substrates do not have the essential character of finished photomasks. In turn, they cannot be described as apparatus of a kind used solely or principally for the manufacture of electronic integrated circuits, as they cannot actually be used to manufacture ICs. Nor can they be described as parts of machines of a kind used solely or principally for the manufacture of electronic integrated circuits, or as parts of machines of a kind used for the manufacture of masks, since they cannot, in their current forms, be used with any such machine.
Moreover, even assuming arguendo that the subject substrates can be considered finished photomasks for classification purposes, they still do not qualify as apparatus within the meaning of heading 8486. As you assert, the term “apparatus” is not defined in the HTSUS. When a tariff term is left undefined in the HTSUS, its meaning may be determined through reconstruction of its legislative history or, failing this, ascertainment of its common meaning. Deckers Corp. v. United States, 752 F.3d 949, 956 (Fed. Cir. 2014). Reference may also be made to the ENs, which, while not binding, are indicative of the proper interpretation of the pertinent heading. Mita Copystar Am. v. U.S., 21 F.3d 1079, 1082 (Fed. Cir. 1994). You contend that because the term “apparatus” is not defined in the HTSUS, it must be understood in accordance with its “common meaning,” which you equate to a collection, set, or aggregate of materials used for a particular purpose or given end. See Mita Copystar Am. v. U.S., 21 F.3d 1079, 1082 (Fed. Cir. 1994); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989); Whirlpool Corp. v. United States, 505 F. Supp. 2d 1358, 1362 (Ct. Int’l Trade 2007); Deseret Co. v. United States, 10 C.I.T. 609, 611 (1986).
However, our review of heading 8486’s drafting history, as illuminated in various reference documents issued by the HSC and Harmonized System Review Sub-Committee (RSC), indicates that “apparatus” has a unique meaning for purposes of the provision. When originally proposed to the RSC, the provision was accompanied by a “list of equipment covered and descriptions thereof” (the “RSC list”). See Classification of Equipment for the Manufacture of Semi-Conductor Devices and Flat Panel Displays, Harmonized System Committee, 21st Session, 42.069 E, Brussels, February 23, 1998; Annex I to Doc. 42.069 E (HSC/21/Feb. 98). The RSC list contains a category entitled “Equipment for processing wafers or glass substrate” that includes, among other things, equipment for coating wafers with photoresist, various aligners designed to expose the photoresist-coated wafer, and direct write-on systems. The common thread among these items, as well as all other items enumerated in the RSC list, is their capacity to independently perform discrete functions, including projection, coating, development, etching, or stripping, among others. Conspicuously absent from the RSC list are photomasks and other items, such as silicon wafers or flat panel displays, that lack such independent functionality and instead are simply manipulated or otherwise acted upon by other articles in the course of semiconductor production. See Annex I to Doc. 42.069 E (HSC/21/Feb. 98). While the term “equipment” was replaced with “machines and apparatus” in subsequent proposals, there is no indication that the new terms were meant to encompass anything other than articles enumerated in the RSC list or articles that similarly boast independent functionality in the semiconductor production process. See Annex A/3 to Doc. 42.500 E (RSC/18/Oct. 98).
This understanding of heading 8486 is supported by EN 84.86 and Statistical Note 1 to Section XVI, both of which list, as “machines and apparatus” classifiable in heading 8486, HTSUS, many of the same articles that are enumerated in the RSC list, such as step and repeat aligners, coating equipment, and direct write-on equipment. Like the RSC list, EN 84.86 and Statistical Note 1 are devoid of articles that are, in and of themselves, incapable of projecting, coating, developing, cutting, etching, or performing any other function. In light of these myriad indicators, it is our position that “apparatus” has a distinct meaning and scope for purposes of heading 8486, HTSUS. Specifically, it describes items that can independently perform discrete functions, and does not extend to articles that are unable to do so. Photomasks are of the latter type, as they cannot actually perform any discernible function in the absence of an aligner or other projection tool. Accordingly, even assuming the subject substrates can be characterized as unfinished photomasks for classification purposes, they cannot be described as apparatus of heading 8486, HTSUS.
As to whether the subject substrates, if considered unfinished photomasks pursuant to GRI 2(a), can be described as parts either of machines of a kind used for the manufacture of electronic integrated circuits or of machines of a kind used for the manufacture of masks, we note that an article within a “parts provision” of the tariff schedule must accord with AUSRI 1(c). AUSRI 1(c) states, in relevant part: “In the absence of special language or context which otherwise requires…a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” You contend that special language superseding AUSRI 1(c) is set forth in Chapter 84, Note 9(D), HTSUS, which provides, in relevant part, that “machines and apparatus answering to the description in heading 8486 are to be classified in that heading and in no other heading of the tariff schedule.” By its own plain language, however, Note 9(D) applies only to machines and apparatus and does not extend to parts of such. Therefore, the subject substrates cannot be classified in heading 8486 as parts if they are classifiable in non-parts provisions. As discussed above, the subject substrates are classifiable in heading 3701 or heading 7006, both of which are specific provisions describing these articles. As such, neither product can be classified as a part in heading 8486.
Moreover, neither type of substrate, even in finished form, can be characterized as a “part” of a kind used for the manufacture of electronic integrated circuits within the meaning of heading 8486. In defining “part”, the courts have fashioned two distinct, yet fully reconcilable, tests for determining whether a particular item qualifies as such. Bauerhin Techs. Ltd. Pshp. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997). Under the test initially promulgated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), an imported item is a part for classification purposes only if can be described as an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779; see also Rollerblade, Inc. v. United States, 282 F.3d 1349, 1354 (noting, in concluding that inline skating pads are not parts, that “the roller skates work in the same manner whether the skater wears the protective gear or not”). Under the test set forth in United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14); Pomeroy Collection, Ltd. v. United States, 783 F. Supp. 2d 1257, 1260 ((Ct. Int'l Trade 2011); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests).
You state that photomasks “are integral parts of lithography equipment because, without them, the equipment cannot fulfill its function of transferring the integrated circuit information onto semiconductor wafer” and that they “are suitable for use solely with lithography equipment that transfers integrated circuit design to the photoresist-coated surface of a semiconductor wafer.” However, once placed into a photolithography machine, each photomask is only needed to the extent that it contains one of the many distinct patterns to be imprinted on the underlying wafer. Otherwise, after this pattern has been imprinted, the photomask will be removed while the production of the wafer continues with use of other photomasks containing the remaining circuitry patterns. In fact, removal and replacement of each photomask is required for the continuation and completion of a given IC production cycle. Accordingly, photomasks cannot be characterized as necessary to the completion of a given machine, as their removal does not impede the continued functioning of the machines with which they are used. Likewise, even if a given photomask is “dedicated solely for use” with a particular type of photolithography device, it does not become necessary for the continued functioning of that device once incorporated.
In a similar vein, the subject substrates cannot be characterized as parts of machines of a kind used for the manufacture of masks. EN 84.86 and Statistical Note 1(b) to Section XVI instruct that the machines described by Note 9(C) are generally those, like the photoplotter, whose function is the projection of light onto the photoresist-coated substrate. See also U.S. Patent No. 4,445,776 (filed Sept. 29, 1980) (describing high resistration photomask generator). Photomasks do not actively project light; rather they are the raw materials upon which light-projecting machines operate, and, as such, cannot be described as parts of the machines themselves. See Mita Copystar Am. v. United States, 160 F.3d 710, 712 (Fed. Cir. 1998); Brother Int’l Corp., 248 F. Supp. 2d at 1232-33 (affirming principle from U.S. v. Am. Express Co., 29 C.C.P.A. 87, 92-93 (1941), that a product of a device cannot be considered a part of that device). Accordingly, the subject substrates are excluded from heading 8486, HTSUS.
HOLDING:
By operation of GRI 1, HTSUS, the quartz substrates containing chrome and photoresist layers are classified in heading 3701, HTSUS, specifically in subheading 3701.99.6060, HTSUS (Annotated), which provides for: “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 the packs: Other: Other: Other.” The 2015 column one general rate of duty for this subheading is 3.7% ad valorem. The subject quartz substrates containing only the chrome layers are classified in heading 7006, HTSUS, specifically in subheading 7006.00.4010, HTSUSA, which provides for “Glass of heading 7003, 7004, or 7005, bent, edge-worked, engraved, drilled, enameled or otherwise worked, but not framed or fitted with other materials: Other: Other: Having an absorbent or reflecting layer.” The 2016 column one general rate of duty for this subheading is 4.9% ad valorem.
Duty rates are provided for the internal advice applicant’s convenience and are 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.
A copy of this decision should be filed with the port of entry at the time of entry.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division