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HQ 967965




APRIL 21, 2006

CLA-2 RR:CTF:TCM 967965 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9010.50.60

John B. Brew, Esq.
Collier, Shannon Scott PLLC
3050 K Street NW
Washington, D.C. 20007-5108

RE: Automatic Mastering System; HQ 963997 Revoked

Dear Mr. Brew:

In HQ 963997, dated April 13, 2001, the AM 100 Automatic Mastering System, machinery for making metal-coated glass discs containing digitally-encoded data, was held to be classifiable in subheading 9013.80.90, Harmonized Tariff Schedule of the United States (HTSUS), as other optical appliances and instruments, not specified or included elsewhere in [chapter 90].

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 of HQ 963997 was published on March 8, 2006, in the Customs Bulletin, Volume 40, Number 11. One comment was received favoring the proposal.

FACTS:

As stated in HQ 963997, the AM 100 Mastering System (the AM 100) is a series of machines or components used to produce metal-coated glass discs containing digitally-encoded audio data. These discs will be further processed by separate machines into master discs called “stampers” which are then used in a separate
process to mass-produce compact discs (CDs). The AM 100’s description and method of operation, as contained in HQ 963997, are incorporated by reference in this decision. As noted therein, except for a programmable personal computer which controls the AM 100’s operations, all of the components that comprise the AM 100 are within the same housing. This merchandise was stated to be similar in all material respects to in-line mastering systems of the type described in HQ 962354, dated July 23, 1999.

In a memorandum of law, dated September 29, 1999, and a submission, dated March 19, 2001, you made a number of factual and legal arguments in support of classification in heading 8520, HTSUS, as other sound recording apparatus. You noted that the laser beam method employed by the AM 100 is advanced technology substantially similar to groove type recording apparatus classified in heading 8520, this technology being recognized by a statistical breakout under subheading 8520.90.00 for optical disc recorders.

HQ 963997 noted, however, that Section XVI, Note 1(m), HTSUS, excludes from that section articles of chapter 90. Therefore, if the AM 100 is provided for in any heading of chapter 90 it is to be classified in that heading. For the reasons that follow, we believe that subheading 9010.50.60, HTSUS, other instruments and apparatus for photographic laboratories represents the correct classification for this merchandise.

The HTSUS provisions under consideration are as follows:

Apparatus and equipment for photographic laboratories..., not specified or included elsewhere in [Chapter 90]...:

Other apparatus and equipment for phographic laboratories...:

9010.50.60 Other

[l]asers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in [chapter 90]; parts and accessories thereof:

9013.20.00 Lasers, other than laser diodes

9013.80 Other devices, appliances and instruments:

9013.80.90 Other

ISSUE:

Whether the AM 100 is provided for in heading 9010, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 3(b), HTSUS, states, in part, that composite goods consisting of different components shall be classified as if consisting of that component which gives the good its essential character.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

We reiterate the finding in HQ 963997 that the AM 100 is a composite good under GRI 3(b) and that the laser beam recorder component imparts the essential character to the whole. HQ 963997 concluded that the AM 100 was classifiable in subheading 9013.80.90, HTSUS, as other optical appliances and instruments, not specified or included in [chapter 90]. However, inasmuch as heading 9013 covers optical appliances and instruments not covered more specifically by another heading in chapter 90, the possible applicability of subheading 9010.50.60, HTSUS, other apparatus and equipment for photographic laboratories, must now be considered, with the focus being on whether the laser beam code cutter component of the AM 100 performs a “photographic” process for purposes of heading 9010. The commenter agrees that heading 9010 represents the correct classification and emphasizes the similarity in function between substantially similar merchandise - which incorporates a laser beam code cutter - and conventional cameras, i.e., both utilize and act on a substrate which is coated with a material that is sensitive to electromagnetic radiation or light, which must be developed chemically in order for an image to form, and which results in the formation of visible images.

In a different context, in QMS, Inc. v. United States, 19 CIT 551 (1995), on color ink sheet rolls for use in thermal transfer printers, the Court stated its broad interpretation of the term “photographic” as including a “process which permits the formation of visible images directly or indirectly by the action of light or other forms of radiation on sensitive surfaces.” Also, HQ 083123, dated December 18, 1989, examined the dictionary definition of the term “laboratory” for heading 9010 purposes, and accorded the term a broad interpretation. We do not necessarily view these references as controlling, but we do find them to be instructive.

The 9010 heading text includes as apparatus and equipment for photographic laboratories apparatus for the projection or drawing of circuit patterns on sensitized semiconductor materials. The ENs for heading 9010, under (N), describe apparatus used to manufacture electronic integrated circuits, those used to expose circuit patterns onto a sensitized layer which has been applied to the surface of the semiconductor wafer. Direct write-on-wafer apparatus is among the types included. These use an automatic data processing (ADP) machine controlled “writing beam” (such as an electron beam (E-beam), ion beam or laser) to draw the circuit design directly on the sensitized layer, which has been applied to the surface of the semiconductor wafer, after the co-ordinate system of the apparatus has been properly aligned on the underlying patterns of the wafer. The EN under (N) ends with “All these apparatus produce the same end result. That is, an exposure pattern which matches the desired circuit pattern and which is produced on a sensitized material which can be developed much as a photographic film is developed.”

Thus, consideration must be given to whether using a laser to expose patterns in the light-sensitive photoresist layer on a glass disc substrate raises a latent image in the photoresist so as to be considered a “photographic” process. The evidence indicates that focusing the laser’s beam on the photoresist layer develops the digitally encoded data in the photoresist in a process that exposes the pattern as a latent image. Inasmuch as direct write-on-wafer apparatus, as described, is considered “photographic” for heading 9010 purposes, and functions in substantially the same manner as the laser beam recorder under consideration here, the laser beam recorder is likewise to be considered as performing a “photographic” process for heading 9010 purposes. Such a conclusion eliminates heading 9013 from consideration. This decision will apply only to mastering equipment incorporating laser beam recorders which encode digitally-formatted data onto the photoresist coating of the glass substrates.

HOLDING:

Under the authority of GRI 3(b), HTSUS, the AM 100 is to be classified as if consisting of the laser beam recorder which is provided for in heading 9010. The AM 100 is classifiable as other apparatus and equipment for photographic laboratories in subheading 9010.50.60, HTSUS.

EFFECT ON OTHER RULINGS:

HQ 963997, dated April 13, 2001, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Gail A. Hamill
for Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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