CLA-2 OT:RR:CTF:TCM H011546 HkP
Mr. Patrick Pascarella, Vice President
Viking Sea/Air Freight, Inc.
486 Sunrise Highway
Rockville Centre, NY 11570
RE: Reconsideration of NY N003122; LEW 410 dielectric tape
Dear Mr. Pascarella:
This is in response to your request for reconsideration of New York Ruling Letter (“NY”) N003122, issued to your client, Toyo Color America, LLC, on December 12, 2006, concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”). At issue is the correct classification of LEW 410 dielectric (also, “die-electric”) tape. U.S. Customs and Border Protection (“CBP”) classified this merchandise under heading 3919, HTSUS, which provides for self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls. It is your contention that the merchandise is properly classified under heading 8541, HTSUS, which provides for, in relevant part, photosensitive semiconductor devices, including photovoltaic cells, and parts thereof. For the reasons set forth in this decision, we hereby affirm NY N003122.
FACTS:
In your original ruling request, you described the merchandise at issue as “an insulated double sided adhesive tape which serves as an electric conductor manufactured for exclusive use with solar panels.” You also submitted product information which described the merchandise as “photovoltaic die-electric tape”, used at the edge of solar panels “to prevent shortage or loss of electricity”. According to the Concise Encyclopedia of Plastics, (Donald Rosato et. al. eds., 2000), the term “dielectric” means “1. a nonconductor of electricity that is an insulating material. 2. The ability of a material to resist the flow of an electric current.” As an initial matter we note, therefore, that based on the definition of the term “dielectric”, dielectric tape does not serve as a conductor of electricity.
After examining a sample of the tape and reviewing the submitted information, CBP described the tape in NY N003122 as follows:
The Lew 410 tape consists of a layer of polyethylene terephthalate (“PET”) film bonded to a layer of polyamide film by means of an acrylic adhesive. There is also a layer of acrylic adhesive on each surface of the tape protected by a release liner on one of the surfaces. The tape, which measure 7 millimeters in width and 200 meters in length, is imported in rolls.
In your reconsideration request, received April 12, 2007, you argue that the classification of the LEW 410 tape under heading 3919, HTSUS, is incorrect because the ancillary function of the product - as a double-sided adhesive tape - was made the focus of the ruling. You state that the primary function of the LEW 410 tape, that is, to act as an insulting dielectric in a solar panel to prevent shortage or loss of electricity, was overlooked. Further, you claim that LEW 410 cannot function as double-sided adhesive tape in the general marketplace, and that if regular double-sided tape were used instead of LEW 410 tape a solar panel would not be able to create solar energy. You contend that the difference between regular double-sided tape and the LEW 410 product is that regular double-sided tape only has one support material, either tissue or PET film, while the LEW 410 tape has two layers of support film, polymide film (PI) and PET film. According to the submitted information, the dielectric property of the LEW 410 is derived from the thickness of its polyimide film, which is claimed to have a greater resistance to heat than other plastic film.
For these reasons, it is your contention that the tape at issue is an essential component of solar roof panels and, as such, is properly classified as a photosensitive semiconductor device of heading 8541, HTSUS.
With regard to the fact that the LEW 410 tape is imported in rolls, in your request for reconsideration you explain that “the roll design enables integrated and smooth manufacturing to expedite an automated application rather than a manual application. The roll design is also the most economical way to transport the product in terms of space saved and protection from dust and other contaminants.”
We have examined the sample of the tape that was provided as a part of the original ruling request as well as the scaled model of a solar panel with LEW 410 tape attached to the inside edges that was submitted with your request for reconsideration of NY N003122.
ISSUE:
Is LEW 410 double-sided dielectric tape a photosensitive semiconductor device classified under heading 8541, HTSUS?
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 HTSUS provisions under consideration are as follows:
3919 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:
3919.10 In rolls of a width not exceeding 20 cm:
* * *
3919.10.20 Other …..
* * *
Other:
* * *
3919.10.2055 Other …..
8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light emitting diodes; mounted piezoelectric crystals; parts thereof:
* * *
8541.40 Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light emitting diodes:
* * *
8541.40.60 Other diodes …..
* * *
Other:
Solar cells:
* * *
8541.40.6030 Other …..
It is your contention that the dielectric tape at issue is properly classified under heading 8541, HTSUS, which provides for, in relevant part, “photosensitive semiconductor devices, including photovoltaic cells”. The term “semiconductor” is not defined for this portion of heading 8541. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Computer Glossary (Freedman ed., sixth ed.) defines the term “semiconductor” as “a solid state substance that can be electrically altered. … A semiconductor is halfway between a conductor and an insulator. When charged with electricity or light, semiconductors change their state from nonconductive to conductive or vice versa.”
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. 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.
EN 85.41(B) explains that photosensitive semiconductor devices are “devices in which the action of visible rays, infra-red rays or ultra-violet rays causes variations in resistivity or generates an electromotive force, by the internal photoelectric effect.” Further EN 85.41(B) explains that:
The main types of photosensitive semiconductor devices are:
* * *
(2) Photovoltaic cells, which convert light directly into electrical energy without the need for an external source of current. …
Special categories of photovoltaic cells are:
Solar cells, silicon photovoltaic cells which convert sunlight directly into electrical energy. They are usually used in groups as sources of electric power, e.g., in rockets or satellites employed in space research, for mountain rescue transmitters.
LEW 410 dielectric tape acts only as an insulator against shortage or loss of electricity; it is not a conductor of electricity. It cannot be charged with electricity or light and cannot change its state from nonconductive to conductive. Visible rays, infra-red rays or ultra-violet rays do not “[cause] variations in resistivity or [generate] an electromotive force, by … internal photoelectric effect” within the tape. Accordingly, we find that the tape is neither photosensitive nor a semiconductor device and, therefore, cannot be classified as a “photosensitive semiconductor device” of heading 8541, HTSUS, because it is not described by the terms of that heading.
Based on your assertion that the LEW 410 tape is an essential component of solar roof panels, we will also address whether the dielectric tape at issue can be considered to be a “part” of a photosensitive semiconductor device of heading 8541, though you have not advocated this position. We assume for the purposes of this discussion that the tape is used with photosensitive semiconductor devices of heading 8541, HTSUS.
It has long been the position of CBP that, generally, articles imported in material lengths are not classifiable as parts because, in their condition as imported, they are not readily identifiable nor dedicated for use as a part, though each case is decided on a case-by-case basis. See, for example, Headquarters Ruling Letter (“HQ”) 954366, dated September 7, 1993, in which doctor blade material not suitable for making anything other than doctor blade assemblies, imported in 100 m long coils, was classified as other articles of plastics under heading 3926, HTSUS; HQ 963186, dated December 21, 2000, in which moldings of extruded plastic and designed for use on the exterior of automobiles, imported in material lengths, were classified as profile shapes of plastics under heading 3916. See also HQ 954821, dated November 8, 1994, and HQ 954822, dated December 22, 1994. Moreover, our position has been validated by the courts. See for example, Baxter Healthcare Corporation of Puerto Rico v. United States (“Baxter Healthcare”) 182 F.3d 1333, 1338 (Fed. Cir. 1999), in which the Court of Appeals (“CAFC”) stated:
Whether an imported item that is made into multiple parts after import is classifiable as ‘parts’ of other articles under the HTSUS involves two questions. First, the item must be dedicated solely or principally for use in those articles and must not have substantial other independent commercial uses. If the item has substantial other commercial uses, ‘it is a distinct and separate commercial entity,’ not a part.… Second, if the item as imported can be made into multiple parts of articles, the item must identify and fix with certainty the individual parts that are to be made from it. (Internal citations omitted.)
In this case, the LEW 410 tape is not dedicated solely or principally for use with photosensitive semiconductor devices. It can be used for any application that requires an insulator against shortage or loss of electricity. Further, the LEW 410 tape is imported in rolls 200 meters long. Regardless of the reason for importation in this form, the tape is not readily identifiable or dedicated for use as a particular part of a photosensitive semiconductor device of heading 8541, HTSTS. As the CAFC stated in Baxter Healthcare (citing The Harding Company v. United States, 23 C.C.P.A. 250, 252), “In the condition as imported, the long roll of … material has in no manner been dedicated to the making of any particular [part]. To be a part … it must be more than mere material for making a [part].” Id. at 1339. Based on the foregoing, we find the LEW 410 tape is not classifiable as a part under heading 8541, HTSUS.
Based on all of the foregoing, we find that LEW 410 dielectric tape is precluded from classification under heading 8541, HTSUS, because it is not described by any of the terms of that heading.
Heading 3919, HTSUS, provides for, in relevant part, self-adhesive tape and strip of plastics, whether or not in rolls. EN 39.19 explains that:
This heading covers all self-adhesive flat shapes of plastics, whether or not in rolls.… The heading is, however, limited to flat shapes which are pressure-sensitive, i.e., which at room temperature, without wetting or other addition, are permanently tacky (on one or both sides) and which firmly adhere to a variety of dissimilar surfaces upon mere contact, without the need for more than finger or hand pressure.
Based on the characteristics of the tape at issue, we find that the LEW 410 tape is correctly classified under heading 3919, HTSUS, as self-adhesive tape of plastics because it is described by the terms of that heading and is not provided for elsewhere in the tariff.
HOLDING:
NY N003122, dated December 12, 2006, is hereby affirmed.
By application of GIR 1, the LEW 410 tape is classified under heading 3919, HTSUS. It is specifically provided for in subheading 3919.10.2055, HTSUSA, which provides for: “Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: In rolls of a width not exceeding 20 cm: Other: Other: Other.” The column one, general rate of duty is 5.8% 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 the internet at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division