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HQ W967818

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September 26, 2006

CLA-2 RR:CTF:TCM W967818 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3707.90.3290

Port Director
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111

RE: Internal Advice Request No. 06/023; Classification of positive and negative photoresists

Dear Port Director:

This ruling is in response to a request for Internal Advice initiated by counsel, on behalf of their client, OHKA America Inc. At issue is the proper classification of positive and negative photoresists, classified at the time of entry in subheading 3707.10.00 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). U.S. Customs and Border Protection (“CBP”) classified the product in subheading 3707.90.32, HTSUSA. The request for internal advice is sought based on the importer’s disagreement with CBP’s classification. The importer asserts that proper classification is in subheading 3707.10.00, HTSUSA.

A meeting was held with members of my staff and importer’s counsel on January 19, 2006. Additional submissions were filed on March 16, March 22, May 31 and July 25, 2006. Consideration of the meeting and additional submissions was given in reaching our determination herein.

FACTS:

The photoresists are a plastics material that hardens in the presence or absence of light and is known as photolithography. The photoresists are spun coated onto a wafer composed of silicon dioxide and a silicon substrate. Light is shown through a patterned mask onto the coated wafer. The exposed areas of the photoresist crosslinks and the non-hardened area of the photoresist is washed away leaving an impression of the mask.

The photoresists are composed of two groups, positive resists and negative resists. In the positive resists, the portion of the photoresist that is exposed to light becomes more soluble to the photoresist developer. The positive resist consists of an organic polymer solution including xylene, diazoquinone derivative and EGA. In the negative resists, a portion of the photoresist which is exposed to light becomes less soluble in the photoresist developer. The unexposed portion of the photoresist is dissolved by the photoresist developer. The negative photoresist is composed of an organic polymer solution including cyclized rubber, bisazide and xylene, that is cast upon a substrate.

ISSUE:

Whether the photoresists are classified in subheading 3707.10.0000, HTSUSA, which provides for: “Chemical preparations for photographic uses (other than varnishes, glues, adhesives and similar preparations); unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use: Sensitizing emulsions.” or in subheading 3707.90.3290, HTSUSA, which provides for: “Chemical preparations for photographic uses (other than varnishes, glues, adhesives and similar preparations); unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use: Other: Chemical preparations for photographic uses: Other, Other.”

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same 4-digit heading under the subheading that most specifically describes or identifies the merchandise.

Chapter 37, HTSUSA, provides for photographic or cinematographic goods. Note 2 to this chapter states that, “In this chapter the word ‘photographic’ relates to a process by which visible images are formed, directly or indirectly, by the action of light or other forms of radiation on photosensitive surfaces.”

Heading 3707, HTSUSA, provides for “Chemical preparations for photographic uses (other than varnishes, glues, adhesives and similar preparations); unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use.”

The merchandise at issue clearly is within the coverage of this chapter and heading as the photoresists are chemical preparations that create a photosensitive surface upon which a visible image is formed. The sole consideration is which subheading most accurately describes the merchandise. Specifically at issue is whether the photoresists are sensitizing emulsions described under subheading 3707.10, HTSUSA, or as other chemical preparations for photographic uses under subheading 3707.90, HTSUSA.

The EN’s to heading 3707 provides in relevant part:

“Subject to the conditions specified at (A) and (B) below, this heading covers products of a kind used directly in the production of photographic images. Such products include:

(1) Emulsions (see the General Explanatory Note to this Chapter).”

The General EN’s to Chapter 37 provides the following:

The photographic plates, film, paper, paperboard and textiles of Chapter 37 are those with one or more layers of any emulsion sensitive to light or other forms of radiation having sufficient energy to cause the necessary reaction in photon (or photo) sensitive materials, i.e., radiation of wavelength no longer than approximately 1,300 nanometeres in the electromagnetic spectrum (including gamma rays, X-rays, ultra-violet and near-infrared radiation), as well as particle (or nuclear) radiation, whether for reproduction in monochrome or colour. Certain plates are, however, not coated with an emulsion but consist wholly or essentially of photosensitive plastics which may be affixed to a support.

The most common emulsions are based on silver halides (silver bromide, silver bromide-iodide, etc.) or on salts of other precious metals, but certain other materials may be used, e.g., potassium ferricyanide or other iron compounds for blue-prints, potassium or ammonium dichromate for photomechanical engraving, diazonium salts for diazo emulsions, etc.

The term “sensitizing emulsion of Chapter 37, HTSUSA, and indeed the use of the term “emulsion throughout the entire HTSUSA, must be considered in pari materia, and that all the terms of the HTSUS must have meaning. The General EN to Chapter 37, HTSUSA, gives many examples of what is a “sensitizing emulsion” but it is not defined. Likewise, the term “emulsion” as it appears in the HTSUSA, is cited by example but is not defined. A tariff term that is not defined in the HTSUSA or in the EN's is construed in accordance with its common and commercial meaning. Nippon Kogasku (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). Furthermore, "in those instances where the common and commercial meanings differ, the party who argues that the term ‘should not be given its common or dictionary meaning must prove that there is a different commercial meaning in existence which is definite, uniform, and general throughout the trade." Winter-Wolff, Inc., v. United States, 996 F. Supp. 1258, 1261 (CIT 1998), citing Rohm & Haas Co. v. United States, 2 Fed. Cir. (T) 28, 29, 727 F.2d 1095, 1097 (1984)).

The importer’s position is that “sensitizing emulsions” encompasses all photographic chemicals that create light-sensitive surfaces. In support, importer cites to the Customs Co-Operation Council Nomenclature Committee Report Doc. 34.78 which reflects the discussions resulting in the change of the phrase “sensitized emulsions” to the current phrase “sensitizing emulsions.” The report notes that the change was necessary as the “function of the emulsion is to render the surface of a plate, film, paper, etc. sensitive to light or other forms of radiation. Thus, technically, it is a sensitizing emulsion.” Id. The reflected changes to the text were to clarify the function of the emulsions rather than to clarify the scope as suggested by importer. Further, the General EN to Chapter 37, HTSUS, distinguishes between photosensitive plastics and emulsions. As previously noted, emulsions and photosensitive plastics both create light-sensitive surfaces. Thus, such an overly broad interpretation of the term “sensitizing emulsions” is not warranted.

Importer further cites to several rulings which purportedly support importer’s position. Specifically, importer cites to NY A85371, dated August 1, 1996, in which “sensitizing emulsions” that are positive photoresist products used as photosensitizing agents were classified in subheading 3707.10.0090, HTSUSA; HQ 962688, dated January 12, 2000, in which a photomask blank was classified in heading 3701, HTSUSA; HQ 950301, dated March 10, 1992, in which printing plates were classified in heading 3701, HTSUSA and; NY I87349, dated October 29, 2001 and HQ 962688, dated January 21, 2000, in which the process of photolithography as used to make sensitized semiconductor wafers, materials and microchip circuitry was discussed. Of the rulings cited by protestant, only NY A85371 is relevant. The remaining rulings importer cites to in support of its position discuss the classification of products in heading 3701, HTSUSA, and not heading 3707, HTSUSA, or the process of photolithography. The sole issue for consideration herein is whether the photoresists are classified in subheading 3707.10, HTSUSA, or subheading 3707.90, HTSUSA. Although the file and background documents for NY A85371 are no longer available due to the events of September 11, 2001, we find that the products at issue therein are distinguishable from the merchandise at issue. The merchandise of NY A85371 involved products used in making photoresists such as developers and solvent systems and not the classification of a complete photoresist as is currently at issue.

The examples of sensitizing emulsions listed in the General EN to Chapter 37, HTSUS, i.e., silver halides, potassium ferricyanide, potassium or ammonium dichromate and diazonium salts, are chemicals utilized in the photographic process. They are suspended in a gelatin mixture and respond to wavelengths of light reflected from an object. The emulsion breaks down and converts its properties to produce an image upon exposure of the emulsion to the appropriate wavelength of light reflected from that object. www.kodak.com.

By contrast, flexible plates coated with a liquid photosensitive plastic (also known as photopolymers) are used in printing processes. Conventional photopolymer plates are either viscous liquids or solid sheets of various thickness. The photopolymer can be selectively polymerized and/or crosslinked upon imagewise exposure by light radiation such as ultra-violet light causing it to harden in the exposed areas. Pocket Pal Handbook, A Graphic Arts Production Handbook, Fourteenth Edition – May, 1989. The photopolymer does not react to the wavelengths of light reflected from an object. Photopolymers react by hardening or not upon exposure to light. The image is formed by placing a mask over the photopolymer and exposing it to light. It is the mask that creates the latent image not the photopolymers reacting to wavelengths of light reflected off of an object.

A photoresist is applied on top of a layer of conductive metal which has been deposited on a wafer. A mask is placed over the photoresist. A light is then illuminated through designated portions of the mask causing the exposed areas to become soluble or insoluble. Concise Encyclopedia of Polymer Science and Engineering. Ed. Jaqueline Kroschwitz. New York: Wiley-Interscience, 1990. 558-559. The photoresists do not create a latent image upon exposure to light. Rather, they are photosensitive plastics affixed to a metal support and allow an image to be created on the support by hardening or not in the areas exposed to light through a mask.

Importer argues that the photosensitive plastics referenced in the General EN to Chapter 37, HTSUS, is limited to photopolymer plates in a solid state at room temperature. The condition of the plates at room temperature does not address the photosensitive plastic coating on the plate. There is no indication implicitly or explicitly concerning the condition of the photosensitive plastics. Rather, the distinction between the photographic emulsions and photosensitive plastics is determined based upon their function as discussed supra.

Importer posits that photoresists fall within the common meaning of the term “emulsion” and the use of the term “emulsion” throughout the various HTSUSA headings and Chapter Notes is not the same meaning as is intended for “sensitizing emulsions.” Importer cites to several publications which refer to photoresists as an “emulsion” but also cites to several dictionary definitions which define photoresists as a “light-sensitive” coating, film, or material. A similar definition of “emulsion” as a “light-sensitive coating or film” was also given. Consequently, importer maintains that the term “photoresist” is a light-sensitive coating used in a photographic process which is therefore a form of emulsion. Importer concludes that although the term “emulsion” is used throughout the remainder of the HTSUSA as a mixture composed of two immiscible liquids such as oil and water, the term “sensitizing emulsion” was purposely included to separately provide for all products that render a surface sensitive to light or other forms of radiation on which to form visible images.

Importer has argued that the term “sensitizing emulsion” should be given a different meaning than the common meaning of “emulsion

See Funk and Wagnall’s Standard Desk Dictionary (1986) and Funk and Wagnall’s Standard College Dictionary (1973) which define “emulsion” as “a liquid mixture in which fatty or resinous substance is suspended in minute globules as butter in milk.” See also Webster’s New World Dictionary (1988) which defines “emulsion” as “a stable colloidal suspension, as milk, consisting of an immiscible liquid dispersed and held in another liquid by substances called emulsifiers; * * * (b) Photog. A suspension of a salt of silver, platinum, etc. in gelatin or collodion, used to coat plates, film and paper.”” as used throughout the remainder of the HTSUSA. As such, it is importer’s burden to prove that there is a different commercial meaning which is definite, uniform and general throughout the trade. Citation to a handful of publications which loosely refer to photoresists as an “emulsion” does not rise to the level of a definite, uniform and general meaning throughout trade. Indeed, as discussed in HQ 087315, dated September 10, 1991, the term photoresist is also referred to as a “solution” in technical publications and product literature. Due to the apparent lack of commercial consensus, we are unable to ascertain the commercial meaning of the term “emulsion”.

The definition of photoresist and emulsion as a light-sensitive material does not necessarily infer that a photoresist is a form of emulsion. As discussed supra, emulsions and photosensitive plastics both create light-sensitive surfaces. The HTSUSA clearly provides for both as distinct materials as evidenced by the terms of the General EN to Chapter 37, HTSUSA. Thus, such an overly broad interpretation of the term “sensitizing emulsions” is not supported.

Of significant importance in understanding the common and commercial meaning of the term “emulsion” as used, in particular, in Chapter 37, HTSUSA, are the General EN’s to Chapter 37, HTSUSA, which facilitate classification under the HTSUSA by offering guidance in understanding the scope of the heading and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of the heading and are generally indicative of the proper interpretation of the headings. The General EN to Chapter 37, HTSUSA, lists examples of the goods that are within the scope of the term “emulsion.” Those examples are silver halides, potassium ferricyanide, potassium or ammonium dichromate and diazonium salts. All of the foregoing chemicals are suspended in a gelatin mixture. These examples correspond to the common meaning of “emulsion” as it is defined as a mixture of two immiscible liquids. Reading the term “emulsion” in pari materia with the General EN to Chapter 37, HTSUSA, and throughout the HTSUSA, leads to the conclusion that it is commonly understood and intended to limit the scope of subheading 3707.10, HTSUSA, to stable colloidal suspensions consisting of an immiscible liquid dispersed and held in another liquid that respond to wavelengths of light reflected from an object.

Based upon the foregoing, the photoresists are photosensitive plastics identified in the EN’s to Chapter 37, HTSUSA. They are classified in subheading 3707.90.3290, HTSUSA.

Our decision is consistent with HQ 085914, dated January 29, 1990 and HQ 087315, dated September 10, 1991, in which identical merchandise was classified in subheading 3707.90.30, HTSUSA. In HQ 085914, we noted that heading 3707 clearly provided for both products which contain a layer of emulsions and those which do not. As the photoresists are photosensitive plastics dissolved in an organic solvent and not an emulsion in which the solute is held in suspension, they were determined to be provided for as other chemical preparations for photographic uses. Likewise, in HQ 087315, we determined that a photoresist is not an emulsion.

HOLDING:

By application of GRI 1, the photoresists are classified in heading 3707, HTSUSA. By application of GRI 6, they are provided for in subheading 3707.90.3290, HTSUSA, which provides for: “Chemical preparations for photographic uses (other than varnishes, glues, adhesives and similar preparations); unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use: Other: Chemical preparations for photographic uses: Other, Other.” The general, column one rate of duty is 6.5% ad valorem.

You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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See also:

• Tariff No.: 3707.10.00 - Sensitizing emulsions, for photographic uses, nesoi
• Tariff No.: 3707.90.32 - Chemical preparations for photographic uses, nesoi