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HQ 960083




July 27, 1998

CLA-2 RR:CR:GC 960083 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9010.90.80

Port Director
U.S. Customs Service
10 Causeway Street
Room 603
Boston, MA 02222-1059

RE: Protest 0401-95-100135; Beam Scanner Retrofit Kit; Electron Beam Lithography System; Apparatus for the Projection of Circuit Patterns on Sensitized Semiconductor Materials; Parts; Legal Note 2 to Chapter 90; Additional U.S. Rule of Interpretation 1(c); HQs 957868, 957207, 954768, and 953141

Dear Port Director:

The following is our decision regarding Protest 0401-95-100135, which concerns the classification of a Beam Scanner Retrofit Kit under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is the 6 MHz Beam Scanner Retrofit Kit for the JBX-5DII Electron Beam Lithography System. The JBX-5DII is a specially designed lithography system for writing circuit designs on semiconductor wafers, as well as for scientific research and pilot product purposes. The 6 MHz Beam Scanner is the writing instrument for the JBX-5DII because it directs the electron beam onto the wafer. The Beam Scanner cannot be used as a stand alone component. The Retrofit Kit is replacing the original parts that were designed in the system.

The merchandise was entered in 1992 under subheading 9010.20.60, HTSUS, as other apparatus and equipment for photographic laboratories. The entry was liquidated on January 27, 1995, under subheading 9010.90.80, HTSUS, as parts and accessories of apparatus and equipment for photographic laboratories. The protest was timely filed on February 23, 1995, and forwarded to Headquarters for further review on December 17, 1996. We regret the delay.

The 1992 subheadings under consideration are as follows:

9010: Apparatus and equipment for photographic (including cinematographic) laboratories
(including apparatus for the projection of circuit patterns on sensitized semiconductor materials), not specified or included elsewhere in this chapter; . . . ; parts and accessories thereof:

9010.20.60: Other apparatus and equipment for photographic (including cinematographic) laboratories; negatoscopes: [o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.7 percent ad valorem.

9010.90.80 Parts and accessories: [o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 5.7 percent ad valorem.

ISSUE:

Whether the 6 MHz Beam Scanner is classifiable as other apparatus and equipment for photographic laboratories, or as parts and accessories of apparatus and equipment for photographic laboratories, under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

There is no dispute that the JBX-5DII Electron Beam Lithography System meets the terms of heading 9010, as apparatus and equipment for photographic laboratories. Legal Note 2 to chapter 90, provides in pertinent part, that:

[p]arts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(a) 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 8485, 8548 or 9033) are in all cases to be classified in their respective headings;

(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind;

We have examined the headings in chapters 84, 85 and 90, and find that there is no provision which describes the beam scanner retrofit kit based upon the application of Legal Note 2(a) to Chapter 90. According to the limited information provided, the retrofit kit which contains a beam scanner, is replacing the original parts that were designed in the system. Based upon the application of Legal Note 2(b) to Chapter 90, we find that the retrofit kit is of a kind suitable for use solely or principally with the JBX-5DII Electron Beam Lithography System. Therefore, the retrofit kit is classifiable under subheading 9010.90.80, as parts and accessories of apparatus and equipment for photographic laboratories.

The protestant claims that the beam scanner retrofit kit constitutes an unfinished good based upon the application of GRI 2(a). In further support of their claim, protestant cited Additional U.S. Rule of Interpretation 1(c) for the proposition that specific provisions prevail over parts provision. Protestant's claims fail on several points. Because classification can be determined by application of GRI 1 and Legal Note 2 to Chapter 90, there is no reason to apply the other GRIs. Further, Additional U.S. Rule of Interpretation 1(c) applies "in the absence of special language or context which otherwise requires". Customs has previously interpreted Legal Note 2 to Section XVI (which is similar to Legal Note 2 to Chapter 90) as being "special language", and thereby finding that Additional U.S. Rule of Interpretation as being inapplicable. (See HQ 957868, dated May 12, 1995, HQ 957207, February 9, 1995, HQ 954768, dated January 4, 1994, and HQ 953141, dated February 8, 1993, for similar holdings on this issue). Therefore, we find that Legal Note 2 to Chapter 90 is also "special language" and that Additional U.S. Rule of Interpretation 1(c) is inapplicable.

HOLDING:

The 6 MHz Beam Scanner is classifiable under subheading 9010.90.80, HTSUS, which provides for: "[a]pparatus and equipment for photographic (including cinematographic) laboratories (including apparatus for the projection of circuit patterns on sensitized semiconductor materials), not specified or included elsewhere in this chapter; . . . ; parts and accessories thereof: [p]arts and accessories: [o]ther. . . ." Goods classifiable under this provision have a general, column one rate of duty of 5.7 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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