CLA-2-90:OT:RR:NC:4:414
TARIFF NOS.: 9002.90.9500; 9001.90.5000; 9031.90.5400; 7116.20.4000; 9013.90.9000
Ms. Marian E. Ladner
Ladner & Associates
The Kirby Mansion
2000 Smith Street
Houston, Texas 77002
RE: The tariff classification of CVD diamond components from The Netherlands
Dear Ms. Ladner:
In your letter dated March 12, 2010, you requested a tariff classification ruling on behalf of your client, Element Six NV located in The Netherlands and its related subsidiary Element Six Technologies (“E6”) in the United States.
The E6 affiliate in the Netherlands manufactures various components using chemical vapor deposition (“CVD”) synthetic diamond. You state that CVD synthetic diamond is a relatively new technology material that is increasingly being used in a variety of applications. Uses include as optical components, in wear and cutting applications and in acoustic applications. You indicate that synthetic diamond produced using CVD technology does not use natural diamond in the production process.
The specific products to be imported are components produced from two CVD diamond materials manufactured by E6: Diafilm OP and llla Optical. They are manufactured using a chemical vapor deposition process that results in a synthetic diamond material that is chemically identical to natural diamonds, but wholly synthetic.
Diafilm OP is a grade of CVD synthetic diamond engineered for use in optical applications. llla optical is a single-crystal engineering material made from CVD synthetic diamond that is designed for optical applications.
In order to classify the five components, it is necessary to determine the classification of the instruments and appliances for which the components are designed. Then the various section and chapter notes of the HTSUS must be applied.
The first product for which you request a ruling is a CO2 beam splitter, part number 155-104-0084. You describe this as a diamond window made of Diafilm OP material. It is designed as a component for a laser spike anneal system. The laser spike anneal system is used to reduce line width and structures on a computer chip. The CO2 Beam Splitter is used to split the laser beam, allowing the use of one lower power beam to perform the annealing function. By tilting the diamond window to various positions between horizontal and vertical relative to the laser beam, the amount of laser light reaching the computer chip can be controlled. The CO2 beam splitter has an optical effect in that it splits the light from the laser. At the time of importation, the CO2 beam splitter is mounted. The only step needed to implement its use in the laser spike anneal system is that of bolting it into the system.
The second product for which you request a ruling is referred to as an IR (infrared) prism accessory, part number 155-104-0560. It is made of llla Optical Diamond material. You describe this as a part produced for use in an infrared spectrometer. The IR prism accessory is a circular disk with two facets at opposing 45 degree angles. One of the reasons that diamond is used in the IR prism is that it has excellent transmission in the infrared region of the electromagnetic spectrum. The IR prism is used as an attenuated total reflection crystal in the measurement of the changes that occur in a total internal reflected beam when it comes in contact with the sample material. At the time of importation, the IR prism accessory is not mounted. The only additional processing performed after importation is the application of an anti-reflective coating and mounting of the item for installation into the infrared spectrometer.
The third product for which you request a ruling is a diamond window, part number 155-104-1071. The diamond window is made of Diafilm OP. You describe this as a part of an instrument used to measure the structure and performance of prototype computer chips. The instrument utilizes a microscope and laser to check the connections between individual elements of the chips. You indicate that the diamond window allows light to pass through it but it does not perform any other optical function, which you refer to as lensing or other change in the light itself. At the time of importation, the diamond window is not mounted. The only additional processing required after importation is the application of an anti-reflective coating and mounting of the item for installation in the quality control instrument.
The fourth product for which you request a ruling is a cryostat window, part number 155-104-0934. You describe this as a part designed for a cryostat, which is used for the performance of chemical/physical experiments at extremely low temperatures. The cryostat window is made of Diafilm OP. You indicate that the cryostat window serves as a shield between the inside of the cryostat and the outside world. At the time of importation, the cryostat window is not mounted and is not coated with an anti-reflective (optical) coating. The only processing required after importation is the application of an anti-reflective coating and mounting of the item for installation in the cryostat.
The fifth product for which you request a ruling is a laser window, part number 155-104-0964. You describe this as a part designed for use in a CO2 industrial laser. The laser window is made of Diafilm OP. The laser window is a wedge that measures approximately 32 mm by 12 mm with two flat surfaces and slightly tapered edges. The laser window is located in the laser cavity. At the time of importation, the laser window is unmounted. The only processing required after importation is the application of an anti-reflective coating and mounting of the item prior to installation in the CO2 laser.
In your letter, you propose classification under subheading 8486.90.0000, HTSUS, for the CO2 beam splitter, part number 155-104-0084. Subheading 8486.90.0000, HTSUS, provides for parts and accessories 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; machines and apparatus specified in Note 9(C) to this chapter. However, articles must be classified in accordance with all the relevant section and chapter notes. The item in question is provided for in Section XVIII, chapter 90. Note 1(m) to Section XVI states that said section does not cover articles of chapter 90. Section XVI, General Explanatory Note (I)(A)(f) excludes articles of Section XVIII from classification in Section XVI. Thus, classification of the CO2 beam splitter, part number 155-104-0084, under subheading 8486.90, HTSUS, is precluded.
In your letter, you propose classification under subheading 9027.90.6400, HTSUS, for the IR prism accessory, part number 155-104-0560. Subheading 9027.90.6400, HTSUS, provides for parts and accessories: other: of optical instruments and apparatus: of instruments and apparatus of subheading 9027.30 (spectrometers, spectrophotometers and spectrographs using optical radiations (ultraviolet, visible, infrared)). The IR prism accessory is not classifiable as a part of a spectrometer because of Note 2 (a) of chapter 90. Note 2 (a) of chapter 90 states that “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”. The IR prism accessory is a good of heading 9001, HTSUS; accordingly, it is classified in heading 9001, HTSUS.
In your letter, you propose classification under subheading 9031.90.5400, HTSUS, for the diamond window, part number 155-104-1071. Subheading 9031.90.5400, HTSUS, provides for measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof, parts and accessories: of other optical instruments and appliances, other than test benches: of optical instruments and appliances of subheading 9031.41 or 9031.49.70. You have stated in your letter that the diamond window does not change the light itself, which we take to mean that the diamond window does not reflect, attenuate, filter, diffract, collimate, etc., the light. We consider the diamond window to be a part of the instrument, rather than an optical element, based on this statement. Because the test and measurement equipment is proprietary, you were not able to provide descriptive literature on the specific instrument. However, the description you provided indicates that the test and measurement is part of a quality control test instrument for computer chips and incorporates a microscope and a laser to check connections between individual elements on the chips. Based on this, we would consider the diamond window to be a part under heading 9031, HTSUS.
In your letter, you propose classification under subheading 9027.90.6400, HTSUS, for the cryostat window, part number 155-104-0934. Subheading 9027.90.6400, HTSUS, provides for instruments and apparatus for physical or chemical analysis: parts and accessories: other: of optical instruments and apparatus: of instruments and apparatus of subheading 9027.20, 9027.30, 9027.50, 9027.80, HTSUS. The cryostat window is not considered a part of the instrument for physical or chemical analysis; rather it is part of the cryostat. You indicate that the cryostat simply acts as a vessel to contain material under testing at low temperature and that the cryostat itself does not perform any testing.
Consideration was given toward classifying the cryostat window, part number 155-104-0934, in heading subheading 8479.90, HTSUS, which provides for machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof. This item is said to be wholly of synthetic diamond. Note 2 to Section XVI, states, in pertinent part, “Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8546 or 8547) are to be classified according to the following rules: …”. Note 1(f) to Section XVI states that said section does not cover “Precious or semi-precious stones (natural, synthetic or reconstructed) of headings 71.02 to 71.04, or articles wholly of such stones of heading 71.16, …”. Although the windows are specifically designed to be incorporated into a machine of chapter 84, they are parts which in and of themselves constitute articles covered by a heading of chapter 71 and, as such, are to be classified in their own appropriate heading. Thus, in accordance with Note 1(f) and Note 2 to Section XVI, classification in subheading 8479.90, HTSUS, is precluded.
In your letter, you propose classification of the laser window, part number 155-104-0964, under subheading 8515.90.4000, HTSUS. Subheading 8515.90.4000, HTSUS, provides for electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus, …: parts thereof: parts: other parts. In your response to our question regarding ancillary equipment, you indicated that E6 does not import the CO2 laser and has no knowledge of any ancillary equipment that might come with it. Articles must be classified in accordance with all the relevant section and chapter notes. The item in question is provided for in Section XVIII, Chapter 90. Note 1(m) to Section XVI states that said section does not cover articles of chapter 90. Section XVI, General Explanatory Note (I)(A)(f) excludes articles of Section XVIII from classification in Section XVI. Thus, classification of the laser window, part number 155-104-0964, in subheading 8515.90, HTSUS, is precluded.
You have stated in your letter that the laser window allows for the transmission of the laser beam, but does not perform any lensing effect on the beam. We take this to mean that the laser window does not perform an optical function such as reflecting, attenuating, filtering, diffracting, collimating, etc., the laser light. We consider the laser window to be a part, rather than an optical element, based on this statement. The laser window for the CO2 industrial laser is provided for as a part of a laser in heading 9013, HTSUS.
The applicable subheading for the CO2 beam splitter, part number 155-104-0084, will be 9002.90.9500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for lenses, prisms, mirrors and other optical elements, of any material, mounted, being parts of or fittings for instruments and apparatus, other than such elements of glass not optically worked; other: other: other. The rate of duty will be 3 percent ad valorem.
The applicable subheading for the IR prism accessory, part number 155-104-0560, will be 9001.90.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for lenses, prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked: other: prisms. The rate of duty will be 2.8 percent ad valorem.
The applicable subheading for the diamond window, part number 155-104-1071, will be 9031.90.5400, Harmonized Tariff Schedule of the United States (HTSUS), which provides for measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; parts and accessories thereof: of optical instruments and appliances of subheading 9031.41 or 9031.49.70. The rate of duty will be free.
The applicable subheading for the (non-optical) cryostat window, wholly of synthetic diamond, part number 155-104-0934, will be 7116.20.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for articles of precious or semiprecious stones (natural , synthetic or reconstructed); of precious or semiprecious stones…; other: of semiprecious stones: other. The rate of duty will be 10.5 percent ad valorem.
The applicable subheading for the laser window, part number 155-104-0964, will be 9013.90.9000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for lasers other than laser diodes; parts and accessories: other. The rate of duty will be 4.5 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Barbara Kiefer at (646) 733-3019.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division