CLA-2 OT:RR:CTF:TCM H055635 RM
Ms. Demetrius D. Jones
Yusen Global Logistics
691 Airport S. Parkway
College Park, GA 30349
RE: Revocation of New York Ruling Letter I87349, dated October 29, 2002; Classification of Pellicles
Dear Ms. Jones:
This is in reference to New York Ruling Letter (“NY”) I87349, dated October 29, 2002, issued to you on behalf of Mitsui Chemicals America, Inc., concerning the tariff classification of pellicles. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the pellicles under heading 9002, 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 or apparatus, other than such elements of glass not optically worked; parts and accessories thereof.” We have reviewed the ruling and found this classification to be incorrect.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on August 27, 2009, in the Customs Bulletin, Volume 43, No. 35. One comment was received in support of the proposed action.
FACTS:
In NY I87349, we described the merchandise as follows:
The Mitsui pellicles consist of a membrane of nitrocellulose, modified cellulose, or fluoropolymer mounted on a frame of aluminum alloy. Pellicles provide a high level of cleanliness and have excellent optical properties. Pellicles are used with the photomask in a photolithography process to transfer reduced-sized patterns from the photomask to sensitized semiconductor wafers and materials. The pellicles are applied to photomasks during the lithography process in order to protect the photomask. In addition to protecting the photomask, pellicles transmit more than 99 percent of light from the photolithography process in a uniform way.
We have since received information indicating that the pellicles at issue do not reflect light. They merely transmit the light that shines through them. According to the Semiconductor Equipment and Materials International (“SEMI”) International Standards: Compilation of Terms (available at www.semi.org, updated November 2008), a “pellicle” is:
[A] thin, optically transparent film typically of a polymer, attached to and supported by a frame, and attached to a photomask [an opaque plate with holes that contains the patterns to be reproduced on a substrate] (also known as a “reticle”). Its purpose is to seal out contaminants and reduce the printed effects caused by contamination in the image plane of an optical exposure system with a minimum decrease in the quality of optical transmission.
Technical information on pellicles, available on the website of a leading supplier (www.mliusa.com/technology-paper.htm), explains that there are two types: “soft” pellicles, made of transparent fluorocarbon-based polymers, and “hard” pellicles, made of quartz glass. The pellicles at issue are soft pellicles.
ISSUE:
Whether the pellicles are classified under heading 9002, HTSUS, as optical elements, or under heading 8486, HTSUS, as parts of machines of a kind used solely or principally for the manufacture of semiconductor devices.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). 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 on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2009 HTSUS provisions under consideration are as follows:
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 …
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:
Other:
Other:
Other …
Legal Note 2 to Section XVI, HTSUS, provides, in relevant part:
Subject to note 1 to this section, note 1 to chapter 84 and note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
Parts which are goods included in any of the heading of Chapter 84 or 85 (other than headings 84.09, 84.31, 84.48, 84.66, 84.73, 84.87, 85.03, 85.22, 85.29, 85.38 and 85.48) are in all cases to be classified in their respective headings;
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 (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 are to be classified in heading 8517.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 8486, HTSUS, provide, in part:
This heading covers 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 …
* * *
(B) MACHINES AND APPARATUS FOR THE MANUFACTURE OF SEMICONDUCTOR DEVICES OR OF ELECTRONIC INTEGRATED CIRCUITS
This heading 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 exposing the photoresist coated wafer with the circuit design (or a part thereof):
(i) Using a mask or reticle and exposing the photoresist to light (generally ultraviolet) or, in some instances, X-rays:
Contact printers …
Proximity aligners …
Scanning aligners …
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.
* * *
(E) PARTS AND ACCESSORIES
Subject to the general provisions regarding the classification of parts (see the 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 thus 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.
The ENs to heading 9002, HTSUS, provide, in part:
With the exception of ophthalmic lenses (which when mounted constitute spectacles, lorgnettes or the like of heading 90.04), 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 ENs to heading 9001, HTSUS, provide, in part:
This heading covers:
(D) Optical elements of any material other than glass, whether or not optically worked, not permanently mounted …
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. (Emphasis added).
* * *
Some of the optical elements listed above (lenses, prisms, etc.) may be colored, or coated with an anti reflection film of cryolite, calcium or magnesium fluoride, etc. This does not affect their classification in this heading.
Heading 9002, HTSUS, provides in part for “Optical elements, of any material, mounted, being parts of or fittings for instruments or apparatus ….” CBP has held, consistent with EN 90.01 (incorporated by reference into EN 90.02), that an “optical element” is one that produces an optical effect. See, e.g., HQ 966475, dated October 23, 2003. That is, it must “[do] 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.” See EN 90.01. See also NY N049895, dated February 10, 2009. The pellicles at issue do not alter (e.g., reflect, attenuate, filter, diffract or collimate) the light that passes through them. To the contrary, they are intentionally designed to reduce their reflectivity and to optimize light transmission. As such, we conclude that they are not “optical elements” of heading 9002, HTSUS.
Heading 8486, HTSUS, provides, in relevant part, 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.” It is undisputed that the subject pellicles are “parts” of a kind used solely with lithography equipment which transfer integrated circuit designs to the photoresist-coated surface of a semiconductor wafer. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774, 777 (Fed. Cir. 1997) (“[A]n imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS”). Specifically, they are parts of step-and-repeat aligners. See EN 84.86 (B)(4)(b)(i)(d).
Note 2(b) to Section XVI, HTSUS, provides that parts which are not included in any of the headings of Chapters 84 or 85 (except for some headings not relevant here), and are suitable for use solely or principally with a particular kind of machine, are classified with that machine. The pellicles at issue are not specifically described in either Chapter. As such, we find that they are classified under heading 8486, in subheading 8486.90, HTSUS, as parts of machines and apparatus of a kind used solely for the manufacture of integrated circuits.
HOLDING:
By application of GRI 1 and Note 2(b) to Section XVI, the subject pellicles are classified under heading 8486, HTSUS, specifically in subheading 8486.90.00, 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: Parts and accessories.” The 2009 column one, general rate of duty is: Free.
EFFECT ON OTHER RULINGS:
NY I87349, dated October 29, 2002, is hereby revoked. In accordance with 19 U.S.C. § 1625(c), this action will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division