CLA-2 CO:R:C:F 087315 RFC
Mr. George R. Tuttle
Three Embarcadero Center
Suite 1160
San Francisco, CA 94111
RE: Reconsideration of Headquarters Ruling Letter (HRL) 085914;
photoresist; resist; emulsion; solution; solvent;
photographic; photosensitive
Dear Mr. Tuttle:
This letter is in response to your letter of May 3, 1990, on
behalf of Tokyo Ogawa Co. Ltd. and Ohka America, Inc., requesting
a reconsideration of HRL 085914, dated January 29, 1990. HRL
085914 concerns the tariff classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) of
photoresist.
FACTS:
The products under consideration are positive photoresist
and negative photoresist. There are three separately identified
products:
OMR-83 Negative Photoresist
OFPR-800 Positive Photoresist
TSMR-8800 Positive Photoresist
In its September 20, 1989, request for classification
rulings, the importer describes OMR-83 negative photoresist as
consisting of "cyclized rubber and sensitive...dissolved in
xylene at a fixed ratio." In this same request, OFPR-800
positive photoresist and TSMR-8800 positive photoresist are
described as consisting of "Novolak resin and
sensitizer...dissolved in EGA (ethylene glycol monoethyl ether
acetate) at a fixed ratio."
In its October 1990, request for reconsideration, the
importer describes OMR-83 negative photoresist as a "mixture of
xylene, cyclized rubber binder and bisazide photosensitive
compound." In this same request, OFPR-800 positive photoresist
and TSMR-8800 positive photoresist are described as "a mixture of
Ethylene Glycol Monoethyl Ester Acetate (EGA), novolak resin
binder and diazo quinone photosensitive compound.
Photoresist is a light-sensitive material that is used in
the manufacture of semiconductor chips or integrated circuits.
During the manufacturing process, photoresist is applied to a
wafer of silicon that is first insulated with an oxide film.
Through further processing, the wafer is eventually turned into
a semiconductor chip or integrated circuit.
A proper understanding of photoresist cannot be had without
knowledge of what constitutes a "solvent" and "solution" and
"emulsion." A "solution" is a substance capable of dissolving
another substance (solute) to form a uniformly dispersed mixture
("solution") at the molecular or ionic size level. See Hawley's
Condensed Chemical Dictionary 1080 (1987). On the other hand, an
"emulsion" is a stable mixture of two or more immiscible liquids
held in suspension by small percentages of substances. Id. at
460.
ISSUES
(1) What is the proper tariff classification under the
HTSUSA of positive photoresist?
(2) What is the proper tariff classification under the
HTSUSA of negative photoresist?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). The tariff classification of merchandise
under the HTSUSA is governed by the principles set forth in the
General Rules of Interpretation (GRIs) and, in the absence of
special language or context which otherwise requires, by the
Additional U.S. Rules of Interpretation. The GRIs and the
Additional U.S. Rules of Interpretation are part of the HTSUSA
and are to be considered statutory provisions of law for all
purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade
and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule
(i.e., (1) merchandise is to be classified under the 4-digit
heading that most specifically describes the merchandise; (2)
only 4-digit headings are comparable; and (3) merchandise must
first satisfy the provisions of a 4-digit heading before
consideration is given to classification under a subheading
within this 4-digit heading) and any relative section or chapter
notes and, provided such headings or notes do not otherwise
require, then according to the other GRIs.
GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall
govern, mutatis mutandis, classification at subheading levels
within the same heading. Therefore, merchandise is to be
classified at equal subheading levels (i.e., at the same digit
level) within the same 4-digit heading under the subheading that
most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (hereinafter "Harmonized System")
represent the official interpretation of the Customs Cooperation
Council on the scope of each heading. See H.R. Conf. Rep. No.
100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin
No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August
23, 1989). Although not binding on the contracting parties to
the Harmonized System Convention or considered to be dispositive
in the interpretation of the Harmonized System, the Explanatory
Notes should be consulted on the proper scope of the Harmonized
System. Id.
A review of the schedule reveals that the products may be
classified in chapter 37. This chapter covers "photographic or
cinematographic goods." Of special significance to the instant
classification analysis is note 2 to chapter 37. This note
states that:
In this chapter the word "photographic" relates to a process
which permits the formation of visible images directly or
indirectly by the action of light or other forms of
radiation on sensitive forms of radiation on sensitive
surfaces.
See Note 2 to Chapter 37 to the HTSUSA.
As indicated above, photoresist is a light-sensitive material.
Therefore, classification in chapter 37 would be appropriate
under a heading providing for such a "photographic" material.
In chapter 37, heading 3707 provides for, among other
things, "chemical preparations for photographic uses (other than
varnishes, glues, adhesives and similar preparations)."
Photoresist is a chemical preparation and, as discussed above, it
meets the definition of "photographic" as set forth above in note
2 to chapter 37. Therefore, photoresist is most specifically
described by the article description "chemical preparations for
photographic uses" as set forth in heading 3707. Thus, pursuant
to GRI 1, photoresist is properly classified under this heading.
Photoresist has been determined to be properly classified
under heading 3707. Consideration now must be given to the
proper subheading under heading 3707 in which to classify
photoresist. In heading 3707, the competing 8-digit subheadings
are 3707.10.00 which provides for "sensitized emulsions" and
3707.90.30 which provides for "other chemical preparations for
photographic uses" (i.e., chemical preparations not eo nomine or
specifically provided for in heading 3707 but which are
nonetheless properly classified under this heading).
Therefore, pursuant to GRIs 1 and 6, if photoresist is not
determined to be properly classified as "sensitized emulsions"
under subheading 3707.10.00 then it must consequently be
classified as "other chemical preparations for photographic uses"
under subheading 3703.90.30.
In order to determine whether photoresist is properly
classified as "sensitized emulsions," one must quite logically
attempt to ascertain what constitutes a "sensitized emulsion" for
purposes of classification under subheading 3707.10.00. Guidance
concerning this article description may be found in the
Explanatory Notes to heading 3707. These notes, however, refer
the reader to the general notes to the Explanatory Notes to
chapter 37 concerning the term "emulsion" (i.e., "Emulsions (see
the General Explanatory Notes to Chapter [37]").
The general notes to the Explanatory Notes to chapter 37
state, in part, that:
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
(e.g., infra-red, ultra-violent, X-ray, gamma-ray or other
radioactivity), whether for reproduction in monochrome or
colour. Certain plates are, however, not coated with an
emulsion but consist wholly or essentially of
photosensitive plastics which may be affixed to a support.
The most common emulsions are based on silver halides
(silver bromide, silver bromide-iodide, etc.) or on salts of
other precious metals, but certain other materials may be
used, e.g., potassium ferricyanide or other iron compounds
for blue-prints, potassium or ammonium dichromate for
photomechanical engraving, diazonium salts for diazo
emulsions, etc.
See General Notes to the Explanatory Notes to Chapter 37 to the
Harmonized Commodity Description and Coding System.
A review of the above-listed general notes shows that the
discussion of "emulsions" is strictly to be construed as this
material is related to or as applied to "photographic plates,
film, paper, paperboard and textiles of Chapter 37." Therefore,
for these notes to be relevant to the instant classification
analysis, it must be shown that the objects to which photoresist
is applied (i.e., an oxide film on a wafer of silicon) is to be
considered the same objects (in both composition and use) as
discussed in this note (i.e., "photographic plates, film, paper,
paperboard and textiles of Chapter 37").
The oxide film on a wafer of silicon on which photoresist is
applied as part of the manufacturing process of semiconductor
chips or integrated circuits is certainly not to be considered
"paper, paperboard and textiles of Chapter 37." For the above
notes to have any relevance to the instant classification
analysis, then, it must be shown that the oxide film on a wafer
of silicon is a "photographic plate and film" as contemplated by
these notes.
A review of chapter 37 reveals that heading 3701 provides
for, among other things, "photographic plates and film in the
flat, sensitized, unexposed, of any material other than paper,
paperboard or textiles." The Explanatory Notes to this heading
may provide guidance as to what constitutes "photographic plates
and film" as discussed in the general notes to the Explanatory
Notes to chapter 37. The Explanatory Notes to heading 3701
state, in pertinent part, that:
This heading covers...photographic plates and film in the
flat, of any material other than paper, paperboard or
textiles. Such plates and film in the flat (i.e., not in
rolls), including film up in disc form, are unexposed and
are generally coated with a sensitized photographic
emulsion. These may be made of any material except paper
(e.g., paper "plates" used to produce negatives), paperboard
or textiles (heading 37.03). The materials commonly used
are glass and cellulose acetate, polyethylene terphthalate
or other plastics (for film packs or cut films), and metal
or stone (for photomechanical processes). Certain plates,
which when exposed and processed will be used for printing,
are not coated with an emulsion but consist wholly or
essentially of photosensitive plastics. They may be affixed
to a support of metal or other material. Some of these
plates must have their degree of sensitivity enhanced prior
to exposure.
These goods are put to many uses such as:
(1) Plates, cut film and film packs for amateur or
professional use.
(2) X-ray plates and flat film including those for dental
radiography. These goods are generally sensitized on
both sides.
(3) Photomechanical process plates of the type used for
photoengraving, photolithography, etc.
(4) Special plates and film for use in thermography,
microphotography, photomicrography, astronomy, cosmic
ray photography, aerial photography, etc.
See Explanatory Notes to Heading 3701 to the Harmonized Commodity
Description and Coding System.
A review of these notes find no indication (either explicit or
implicit) that the term "emulsion" as found therein covers
photoresist. All of the "photographic plates and film"
discussed in these notes are for use in creating visible images
for viewing (e.g., photographic pictures) or for printing (e.g.,
printing plates). On the other hand, the oxide film on a
silicon wafer on which photoresist is applied is used to produce
a semiconductor chip or integrated circuit used for the distinct
purpose of conducting electricity. Clearly, then, the
terminology "photographic plates and film" as set forth in the
general notes to the Explanatory Notes to chapter 37 does not
cover the oxide film on a silicon wafer used in the manufacture
of semiconductor chips or integrated circuits. Accordingly, the
discussion of the term "emulsion" as set forth in these same
notes has no application or relevance to photoresist.
Therefore, the general notes to the Explanatory Notes to chapter
37 are inapplicable and irrelevant to the instant classification
analysis of photoresist.
Photoresist has been found not to be an "emulsion" as this
term is used and discussed in the Explanatory Notes. Therefore,
consideration must now be given to other possible sources dealing
with the issue of whether photoresist is considered chemically,
commercially or commonly to be an "emulsion."
In support of its position that photoresist is an emulsion,
the importer submits as exhibits various sections and articles
(and parts thereof) from various publications. In some places in
this material, the term "emulsion" is used in a loose manner in
junction with the term "photoresist." Of special significance to
the instant classification analysis, however, is that in a
chapter from a book entitled Photoresists: Materials and Process
the term "emulsion" is never used either in regard to
photoresists or otherwise. In fact, in this chapter, photoresist
is described as a "solution." See Exhibit 6 to October 1990
Request for Reconsideration, p. 13 of chapter 1 ("The second
phase of the dichromate era in the evolution of photoresists
technology was the introduction of synthetic photosensitive
polymers...These solutions had some of the expected advantages
over their natural counter parts with regard to consistency and
shelf life [emphasis added].").
In product literature submitted by the importer at a June
15, 1990 conference, in various places where photoresist
products are discussed, the term "emulsion" is never used. In a
section in this product literature entitled "Printed Circuit
Board Photoresists and Specialty Circuits," however, a
photoresist product is described as a "solvent" (i.e., "In 1962,
we developed TPR, a solvent photoresist that started a whole new
line for us, and since then we have provided industry [sic] with
an extensive line of chemical-resistant, non chrome-water soluble
photoresists [emphasis added].").
A review of the scientific literature clearly shows that
liquid photoresist is chemically and commercially and commonly
considered and understood to be a "solution" rather than an
"emulsion." See 17 Encyclopedia of Chemical Technology 681, 705
(1980) ("Photoresist polymer compositions must fulfill a number
of physical-property-dependent requirements under practical
working conditions. The polymers must form homogeneous solutions
in ecologically acceptable solvents...[and]...be characterized by
good solution stability for storage...[Moreover,] [l]iquid-resist
coverage depends on the concentration of solids dissolved in the
resist solvent [emphasis added]"); Printed Circuits Handbook 11.8
(1982) (A characteristic of liquid photoresist is that it is
solvent based.).
In various dictionary definitions, the term "photoresist"
is neither defined as nor referred to as an "emulsion." See The
Illustrated Dictionary of Microcomputers 287 (1990) (Photoresist
is a "substance that resists the erosion properties of an etchant
when exposed to intense light...[and]..is usually an organic
material that polymerizes on exposure to light...."); Webster's
Ninth New Collegiate Dictionary 886 (1989) (Photoresist is "a
photosensitive resist...."); The Random House Dictionary of the
English Language 1459 (1987) (Photoresist is "a photosensitive
liquid polymer...."); Vol. III The Compact Edition of the Oxford
English Dictionary 767 (1987) (Photoresist is "[a] photosensitive
resist which when exposed to (usu. ultraviolet) light loses
either its resistance or its susceptibility to attach an etchant
or solvent."); Dictionary of Information Technology 257 (1986)
(Photoresist: "Pertaining to photosensitive materials that
react to light by hardening."); Computer Dictionary 348 (1985)
(Photoresist is a "liquid that, when spread in a thin film, and
dried, quickly hardens into a tough plastic substance when struck
by ultraviolet light."); Barnes & Noble Thesaurus of Computer
Science 138 (1984) (Photoresist is "a material which is
photosensitive and resistant to an etching material.").
In light of the above, one can only conclude that
photoresist is not properly classified as "sensitized emulsions"
under subheading 3707.10.00. Consequently, as discussed above
and pursuant to GRIs 1 and 6, photoresist can only be classified
under subheading 3707.90.30 as "other chemical preparations for
photographic uses."
Finally, in a June 12, 1991, submission, the importer cites
a statistically annotated tariff-rate line as "authority" for
its argument that photoresist is an emulsion. This is entirely
incorrect. First, tariff-rate lines are annotated by the
addition of 2-digit statistical suffixes to 8-digit subheadings
merely to permit the collection of trade data on narrower classes
of merchandise. See Committee on Ways and Means of the U.S.
House of Representatives, Overview and Compilation of U.S. Trade
Statutes (WMPC:101-14) 5 (1989). These statistical "break outs"
are not part of the legal text of the HTSUSA. See Sections
1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act
of 1988 (19 U.S.C. 1204(a) and 1204(c)). Therefore, a
statistical "break out" located in one chapter most certainly
cannot act as authority for the classification of merchandise
classified in a completely different chapter in the HTSUSA.
Second, as has been clearly shown above, photoresist is not
chemically, commercially or commonly considered or understood to
be an "emulsion."
HOLDING:
All of the above-described products are properly classified
under subheading 3707.90.30, HTSUSA, which provides for, among
other things, chemical preparations for photographic uses (other
than varnishes, glues, adhesives and similar preparations),
other, chemical preparations for photographic uses. The general
rate of duty is 8.5 percent ad valorem.
In view of the above, HRL 085914 is hereby affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division