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HQ 967967




APRIL 21, 2006

CLA-2 RR:CTF:TCM 967967 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9010.50.60

Mark Neville
KPMG Peat Marwick LLP
345 Park Avenue
New York, NY 10154

RE: Laser Beam Recorder, HQ 962939 Revoked

Dear Mr. Neville:

In HQ 962939, dated July 8, 1999, issued to you on behalf of Panasonic Disc Services Corporation, a laser beam recorder or laser transfer machine was found to be classifiable in subheading 9013.80.90, Harmonized Tariff Schedule of the United States (HTSUS), as other optical instruments and apparatus, 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 962939 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 962939, the laser beam recorder, together with other machines, comprised an in-line mastering system that produces encoded nickel discs called stampers, as an intermediate step in digital versatile disc (DVD) production. The laser beam recorder, also referred to as a laser transfer machine or laser encoder, is one component of an in-line mastering system, a subgrouping of machines in the mastering
line which produce glass discs called “masters.” The description of the in-line mastering system and its method of operation, as stated in HQ 962939, are incorporated by reference in this decision. Our focus will be on the laser beam recorder which is separately classifiable.

The laser beam recorders in HQ 962939 consist of a laser, a signal processor, an optical modulator, recording optics, and a turning and sledding mechanism. The ion-type laser uses argon or krypton gas on a 413 nm wavelength to encode data in digital format onto the photoresist coating of the glass substrate. The signal processor converts the digital source data to the appropriate compact disc format and sends this data to the Acoustic-Optic Modulator (AOM). The AOM transforms the laser’s continuous wave into a pulsed beam which exposes a pattern in the photoresist-coated glass that represents the digitally-formatted information. The recording optics direct the beam through a series of optical lenses that reduce the laser beam’s diameter to the appropriate size to make the pits. Finally, the turning and sledding mechanism moves the glass disc into and out of position under the laser and spins the disc during the pit forming operation.

The HTSUS provisions under consideration are as follows:

Apparatus and equipment for photographiclaboratories, not specified or included elsewhere in [chapter 90];; parts and accessories thereof:

Other apparatus and equipment for photographic 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 laser beam recorder is provided for in heading 9010.

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.

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, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the Harmonized System. U. S. Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The subheading 9013.80.90, HTSUS, classification HQ 962939 reached was based, in large part, on a finding that the laser beam recorder was within the Chapter 90, Additional U.S. Rule of Interpretation 3, HTSUS, definition of the terms “optical appliances” and “optical instruments.” It now appears that subheading 9010.50.60, HTSUS, other apparatus and equipment for photographic laboratories, was not sufficiently considered. The comment favoring classification in this subheading focused, in relevant part, on the similarities in function between laser beam recorders and conventional cameras, with which CBP is generally in agreement.

By its terms, heading 9013 does not include optical appliances and instruments that are specified or included elsewhere in chapter 90. 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. In the context of heading 3702, photographic film in rolls, 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.” See OMS, Inc. v. United States, 19 CIT 551 (1995). 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 1, HTSUS, the laser beam recorder, laser transfer machine or encoder is provided for in heading 9010. It is classifiable in subheading 9010.50.60, HTSUS.

EFFECT ON OTHER RULINGS:

HQ 962939, dated July 8, 1999, 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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